Bernadine Suitum had to go all the way to the U.S. Supreme Court
to win the right to file a lawsuit. Isn't it ironic? The ruling
is a bittersweet victory for the widowed Mrs. Suitum, who is now
in her 80s. On May 27, 1997, after six years of litigation, the
Supreme Court ruled she can finally file suit against the Tahoe
Regional Planning Agency (TRPA) for the unconstitutional taking
of the property she and her late husband bought in the Nevada town
of Incline Village back in 1972.
At the time the Suitums bought the 18,300-square-foot lot in what
is now a bustling subdivision, there were no regulatory impediments
to building on the land. Mrs. Suitum, however, did not seek to develop
her property until 1987. In the intervening 15 years, TRPA designated
the land containing her lot as part of a "stream environment
zone." When she applied for a building permit to construct
a single-family home on her lot, she was told that building a home
on her lot no longer was allowed.
The Fifth Amendment to the United States Constitution clearly states
that "nor shall private property be taken for public use, without
just compensation." The actions of federal, state, and local
regulators, however, have made a mockery of this important keystone
of our liberties; and, the actions of TRPA in particular in this
garden-variety zoning case should serve as a "wake-up"
call to those who believe they are immune from ever having their
own property rights infringed.
TRPA sought to bypass its constitutional mandate to pay Mrs. Suitum
the fair and just compensation she was owed by giving her what is
called "transferable development rights" (TDRs). Under
TRPA's logic, she could sell the TDRs to a third party for a portion
of the market value of her lot, thus fulfilling TRPA's constitutional
obligation. The problem here, however, was that Mrs. Suitum did
not want to get embroiled in TRPA's complex transfer lottery scheme.
She simply wanted TRPA to honor its constitutional duty to pay her
the just compensation she deserved.
She was forced to file suit to obtain compensation. TRPA argued
that her claim was not "ripe" for judicial review because
she had not attempted to market the TDRs. Thus began the "rotten"
system of ripening a constitutional claim for just compensation.
The notion of "ripeness" is rooted in part in Article
III of the Constitution, which bars federal courts from rendering
speculative or advisory opinions. For example, if you went to federal
court complaining that your neighbor's tree was going to fall on
your house, you would either have to show it would likely fall or
wait until it actually fell to bring a lawsuit.
In 1985, the Supreme Court increased the ripeness requirement for
constitutional claims for just compensation. As a result of Williamson
County Regional Planning Commission vs. Hamilton Bank, property
owners -- unlike any other federal court litigants -- must show
not only that there is a concrete injury-in-fact, but that the government
in question has reached a "final" decision with respect
to any use of the property. It was this unusually harsh standard
of ripeness that forced Mrs. Suitum to spend six years litigating
her case solely on that issue.
In its unanimous decision in Suitum vs. Tahoe Regional Planning
Agency, however, the Supreme Court held that even though Mrs. Suitum
had not made any attempt to market the TDRs, she had, in fact, obtained
a "final decision" consistent with Williamson County.
The central holding of Suitum states that "(t)he demand for
finality is satisfied" by merely looking at how the "regulations
at issue (apply) to the particular land in question." This
a long overdue breath of fresh air in this area of law. The holding
will also have a profound impact on local government decision-making
which routinely utilizes TDRs as a means of avoiding payment of
The Suitum holding also means that no matter what subsequent steps
government may take -- or what offers of value the government may
attempt to exchange for the taking of your property -- it cannot
bar you from at least having your claim heard by a federal court.
Justice Antonin Scalia, in his concurring opinion, takes the analysis
to its logical end when he states: "If money that the government-regulator
gives to the landowner can be counted on, the question of whether
there is a taking (causing the courts to say that the land retains
substantial value, and has thus not been taken), rather than on
the question of whether the compensation for the taking is adequate,
the government can get away with paying much less. That is all that
is going on here."
By the same token, Mrs. Suitum is also entitled to full compensation
for the taking of her property, not the inadequate grant of the
potential to sell some portion of her development rights to a third
party. Thanks to the Supreme Court's decision, she and property
owners across America are now a step closer.
*Nancie Marzulla is president and chief legal counsel of Defenders
of Property Rights. She and Roger Marzulla are the authors of "Property
Rights: Understanding Government Takings and Environmental Regulations"
published by Government Institutes Press. Copyright@1997. News World
Communications, Inc. Reprinted with permission.