A California couple that purchased a property out of foreclosure were later denied a permit to rebuild (the previous house was destroyed by fire) because the local planning authority declared the property to be entirely within a Stream Environment Zone – apparently because of a small creek and some runoff towards the rear of the parcel. The Pacific Legal Foundation is currently suing the planning authority, on their behalf, in federal court claiming a violation of the Fifth Amendment to the U.S. Constitution.
Shown below is the media release issued by the Pacific Legal Foundation:
Lake Tahoe regulators sued for “taking” a couple’s property
Agency is blocking Ray and Teresa Burns from rebuilding a home on their vacant parcel — in a developed residential area where a house stood for 30 years before a forest fire
SOUTH LAKE TAHOE, CA; December 10, 2015: The Tahoe Regional Planning Authority (TRPA) is committing an unconstitutional “taking” by prohibiting a couple from rebuilding a house on their vacant parcel, where a home stood for 30 years before being destroyed by the Angora forest fire in 2007.
So argues a constitutional property rights lawsuit filed in federal court today by attorneys with Pacific Legal Foundation (PLF), on behalf of Ray Burns and his wife, Teresa Avila-Burns. Ray and Teresa have been prohibited by TRPA from making any use of their vacant parcel, which lies in a developed residential area in South Lake Tahoe, more than three miles south of the lake. Donor-supported PLF represents the couple without charge, as with all PLF clients.
The lawsuit contends that TRPA is in violation of the Fifth Amendment, which requires “just compensation” when government takes property for public use. The Supreme Court has held that this requirement applies not just when government seizes property, but also when government deprives owners of all economically viable use of their land. This is what TRPA has done to Ray and Teresa, by declaring that their vacant parcel lies within a “Stream Environment Zone,” and they can’t rebuild on it — even though it is in a fully developed neighborhood.
TRPA’s actions are irrational — and unconstitutional
“TRPA is thumbing its nose at basic constitutional protections for property owners,” said PLF attorney Christopher Kieser. “Government can’t regulate away all use of land without paying for it. If an agency like TRPA tells owners they can’t build on their property, the agency has the power to prohibit use, but the Constitution says the owners must be compensated.”
“In this case, TRPA’s actions are particularly irrational, because the lot had a home on it for 30 years, sits in a neighborhood with a number of other homes, and is more than three miles from the lake,” Kieser continued. “Rebuilding a home here would not impact the lake at all.”
Indeed, the parcel is in an area with substantial urban commercial and residential development. It is on a major paved street, with concrete curbs, and a driveway curb cut into the property. It has electrical service, public water, public sewer, and telephone services. Most surrounding parcels are developed with existing single-family homes.
“If TRPA can’t be stopped from behaving irrationally with unjustified restrictions on this property, it can and must be stopped from acting unconstitutionally,” Kieser said. “If it insists on denying Ray and Teresa the use of their land, TRPA must pay just compensation.”
TRPA blocks Ray and Teresa from building a house for their elderly mothers
Ray and Teresa are residents of San Jose. Teresa is a nurse and Ray works as a project manager in construction. They long dreamed of purchasing a parcel in the Tahoe area where they could build a home where both of their elderly mothers could enjoy the area’s tranquility. In 2009, they finally got the opportunity to purchase a parcel out of foreclosure.
The couple started down the permitting process path, hired a designer and purchased a housing allocation from El Dorado County, as they were instructed by TRPA to do.
But later TRPA took a different stance. It said that the lot had to be scored under the Individual Parcel Evaluation System (IPES) to determine whether it could be developed. This past March, the couple was told that TRPA had declared the property to be entirely within a Stream Environment Zone because of a small creek and some runoff towards the rear of the parcel.
That designation meant the property received a zero score and could not be developed at all.
TRPA bureaucrats dash a family’s dreams
“My husband and I were so excited when we found this property and saw the opportunity to provide a place for both of our elderly mothers to live and enjoy the cool summer temperatures and beauty of the Tahoe area,” said Teresa. “With both of us, our mothers have done so much for us, working hard to raise us, and we wanted to give this gift to them.
“We were originally told by officials with both TRPA and the county that we could get permission to build, and we went ahead and purchased a building allocation from the county at over $1,400,” she continued. “Then, months later, TRPA declared that our property is in a stream environment zone and nothing can be built on the entire lot. We were shocked — not just because they were going back on what they’d told us, but because this lot had a house on it for 30 years, and there are many houses in the area.
“I think TRPA doesn’t feel it has to respect people’s rights,” she said. “TRPA has been walking all over people for so long, without any consequences. We want that to change.
“TRPA knows that a lot of people don’t know they have rights,” she added. “We’re happy Pacific Legal Foundation is joining us in this fight, because it’s important for people to stand up to TRPA, and let this agency know it can’t take what it wants, when it wants, without concern for people’s freedom. TRPA needs to learn it isn’t above the law.”
Filed in the U.S. District Court for the Eastern District of California, the case is Burns v. Tahoe Regional Planning Agency. More information, including the complaint, a video, a blog post, and a podcast, is available at: www.pacificlegal.org.
About Pacific Legal Foundation
Donor-supported PLF is the leading watchdog organization that litigates for limited government and property rights. PLF’s precedent-setting property rights victories include the U.S. Supreme Court’s 1997 ruling in Suitum v. Tahoe Regional Planning Authority. In that case, the court shot down TRPA’s Byzantine procedural scheme attempting to block property owners from seeking judicial relief for denial of their property rights.