Groups choose sides in TRPA’s court battle

Wednesday, Jan. 15, 1997 | 11:59 a.m.

Oral arguments are scheduled to be heard by the Supreme Court in February, and a decision is expected by summer.

The case was first filed in 1991 by Bernadine Suitum of Sacramento, who purchased a vacant lot in Incline Village in 1972. When Suitum tried to build on the property in 1989, she learned that the bistate TRPA had determined the lot was within a sensitive stream zone, and denied her a permit.

But Suitum's case was tossed out by lower courts, which declared that she could not pursue a claim that the bistate agency engaged in an unconstitutional "taking" of her property unless she first tried to sell the development rights assigned to her property.

Suitum's suit challenges the TRPA's use of transferable development rights as compensation for land-use restrictions, as well as a requirement that property owners sell off property rights before they can initiate a claim.

A victory by Suitum could damage the ability of local governments to rely on transferable development rights, while a victory for the TRPA could limit the ability of property owners to sue agencies for illegally taking their property.

By Tuesday, 10 amicus briefs had been submitted on behalf of the TRPA and nine briefs on behalf of Suitum.

Among those supporting the TRPA were California Gov. Pete Wilson; the director of the California Department of Natural Resources; the states of Nevada, Hawaii and Vermont; the Solicitor General of the United States; the National Trust for Historic Preservation; the State and Local Legal Center and the American Planning Association.

Filing briefs on behalf of Suitum were a number of property-rights groups and building trade agencies, including the National Association of Home Builders, the Building Industry Legal Defense Foundation, the Defenders of Property Rights, American Farm Bureau Federation and the Institute of Justice.

"We think this is an extremely important case, an opinion bolstered by the fact that 27 groups joined us in our amicus brief," said Nancie Marzulla of the Washington, D.C.-based Defenders of Property Rights.

Marzulla said the group doesn't dispute the concept of transferring development rights, but is more concerned with the obstacles barring property owners from filing a claim until they have pursued the sale of the transferable rights.

One of the groups submitting a brief in support of the TRPA was the American Planning Association, which represents 27,000 public and private planners.

Dwight Merriam, an association attorney, said the group wants to see the court clarify the rules by which agencies assign development rights.

"I think the current rules are a mess, to use a precise legal term," Merriam said. "Transferable development rights are by no means novel or experimental any more in this country; they are central in a number of important projects."