Saturday, December 19, 2015

California Couple Tag Tahoe Regional Planning Agency w/ Inverse Condemnation Suit, Saying Government Refusal To Grant Building Permit To Rebuild Home On Now-Vacant Land Constitutes A 'Taking' Of Property w/out Paying Compensation

In South Lake Tahoe, California, the San Jose Mercury News reports:
  • Backed by a conservative legal group, a San Jose couple has taken their six-year feud with Lake Tahoe regional planners to federal court, arguing that a policy keeping them from building a house for their elderly mothers on vacant property is unconstitutional.

    In a lawsuit filed [] in U.S. District Court in Sacramento, Ray and Teresa Burns allege that the government is violating protections against improper taking of property by denying them permits to build the South Lake Tahoe home.(1)

    The couple purchased the property in foreclosure in 2009, two years after a house on that land burned down in the 2007 Angora forest fire. The lawsuit, crafted by the Sacramento-based Pacific Legal Foundation, notes that a house had been on that same property for 30 years prior to the fire, and that the property is surrounded by other homes and businesses.

    Teresa Burns said she was "devastated" when officials with the Tahoe Regional Planning Agency told them they could not build the house on the property, where they had dreamed of moving both of their mothers.

    "It was awful, it was heart wrenching," said Burns, a nurse in San Jose.

    Officials with the planning agency could not immediately be reached for comment. The agency denied permits to build on the land because it was determined to be in an environmentally protected zone as a result of nearby creek and water runoff areas, according to court papers.

    The agency, known as TRPA, operates as a combined California, Nevada and federal regulatory agency, noting on its website that it is responsible for regulating development to protect the lake's watershed.

    The lawsuit seeks court orders finding that the agency actions are unconstitutional and compensation for the fact the couple now cannot build the house on their property.

    "(The agency) is thumbing its nose at basic constitutional protections for property owners," said Christopher Kieser, a lawyer for the couple. "Government can't regulate away all use of land without paying for it."

    Ray Burns, a local construction project manager, is frustrated by the tough stance taken in the environmentally-conscious Tahoe region.

    "We picked that neighborhood because it was everything our parents need," he said.
Source: San Jose couple sues over Lake Tahoe house feud.

See also, 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).
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(1) Such a taking without compensation is often referred to as an inverse condemnation:
  • Inverse condemnation is a term used in the law to describe a situation in which the government takes private property but fails to pay the compensation required by the 5th Amendment of Constitution. In some states the term also includes damaging of property as well as taking it.

    In order to be compensated, the owner must then sue the government. In such cases the owner is the plaintiff and that is why the action is called inverse – the order of parties is reversed, as compared to the usual procedure in direct condemnation where the government is the plaintiff who sues a defendant-owner to take his or her property

    The taking can be physical (e.g., land seizure, flooding, retention of possession after a lease to the government expires, deprivation of access, removal of ground support) or it can be a regulatory taking (when regulations are so onerous that they make the regulated property unusable by its owner for any reasonable or economically viable purpose).

    The latter is the most controversial form of inverse condemnation. It is considered to occur when the regulation of the property's use is so severe that it goes "too far," as Justice Holmes put it in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), and deprives the owner of the property's value, utility or marketability, denying him or her the benefits of property ownership thus accomplishing a constitutionally forbidden de facto taking without compensation. Reference: Wikipedia.

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