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Suitum v. Tahoe Reg'l Planning Agency

ELR Citation: 27 ELR 21064
Nos. 96-243, 520 U.S,. 725/117 S. Ct. 1659/(U.S., 05/27/1997)

The Court holds that a landowner's takings claim against a regional planning agency is ripe for adjudication. The agency determined that the landowner may not develop her property but is entitled to transferable development rights (TDRs). The Court first notes that its discussion is confined to whether the landowner satisfied the "final decision" prong of the ripeness requirement set forth in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). Only that prong was addressed below and briefed before the Court. The Court holds that the landowner satisfied that prong because the agency has finally determined that her land lies entirely within a "stream environment zone," in which the agency does not, with limited exceptions, permit permanent land disturbance. Because the agency has no discretion over the landowner's right to use her land, no occasion exists for applying Williamson County's requirement that a landowner take steps to obtain a final decision about the use that will be permitted on a particular parcel. Agency action on the landowner's possible application to transfer her TDRs is not the type of final decision required by the Court's Williamson County precedents, because the parties agree on the TDRs to which she is entitled and no discretionary decision must be made by any agency official for her to obtain them or to offer them for sale. The only decision left to the agency is approval of a particular transfer of TDRs, but whether a particular transfer of TDRs may be completed is different from whether TDRs are saleable. The Court rejects the agency's argument that because values for the landowner's TDRs are unknown, the landowner's claim is unripe. The valuation of the TDRs is simply an issue of fact about possible market prices, and one on which the district court had considerable evidence. Finally, the Court rejects the agency's argument that the claim is unripe under the "fitness for review" requirement of Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), because the landowner does not challenge the validity of the agency's regulations.

[A prior decision in this litigation is published at 26 ELR 21300.]

Counsel for Plaintiff
William P. Cashill
Law Offices of William P. Cashill
410 California Ave., Reno NV 89509
(702) 334-4444

Counsel for Defendant
J. Thomas Susich
Crowell, Susich, Owen & Tackes
510 W. 4th St., Carson City NV 89703
(702) 882-1311