A federal lawsuit has been filed on behalf of a family that owns land near South Lake Tahoe after a state agency ruled they could not replace a home that had been destroyed by a wildfire started by an illegal campfire.
This decision was announced, after the landowners already had purchased a building, by a coalition of government organizations set up to make sure the waters of Lake Tahoe, more than five miles away from the building site, are protected.
The case was brought by lawyers with the Pacific Legal Foundation on behalf of Teresa Avila-Burns and Ray Burns against the Tahoe Regional Planning Agency, a government division set up to work with local city and county governments in the region of the scenic lake to protect it.
The fight is over a residential lot that was left vacant when the 2007 Angora fire burned the home that had been there for decades. There still is a driveway cut and various utilities lines running to the land.
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The Burns, who bought the land out of a bank foreclosure with the intention of building a home on the same footprint as the previous home, were told by several agencies that they could build, and they spent $1,400 on a building "right," one of several that was allocated under a program to control building projects.
Then the agency said it would not allow them to build. And it would not pay them any compensation for taking their use of their own land.
"TRPA's actions are not only unfair, they're unconstitutional," said John Groen, the principal attorney for the foundation. "The Supreme Court of the United States has ruled that when government regulates property to such an extent that it denies all economically viable use, that is a taking in violation of the Fifth Amendment."
The case points out the problem with the government agency's designation of the land as a "Stream Environment Zone," "The parcel is located about 5.3 miles from Lake Tahoe. Between the parcel and the lake lies the City of South Lake Tahoe, with substantial urban commercial and residential development."
The lawsuit claims the TRPA is violating the Fifth Amendment, which requires "just compensation" when a government takes a private property for public use.
"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."
The parcel not only is inside a developed subdivision, "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," the legal team's filing explained.
"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."
Teresa, a nurse, and Ray, a construction project manager, long had vacationed in the area, and had dreamed a buying land there. Their opportunity came in 2009 when the land came available, under a foreclosure process that followed the wildfire.
They hired a designer, bought a housing allocation from El Dorado County, as TRPA instructed, and were making construction plans.
Then the TRPA suddenly said the land was in the stream zone, and no building would be allowed at all.
"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."
The case was filed in the U.S. District Court for the Eastern District of California.
The foundation has posted a video explaining the couple's side of the case:
WND reported when the foundation decided to send a similar fight over Wisconsin land to the U.S. Supreme Court.
That dispute was on behalf of the Murr family, Donna Murr and her siblings, Joseph Murr, Michael Murr and Peggy Heaver.
There, the family owned two lots along the St. Croix River, one occupied by a cabin, the other vacant.
When new federal rules were developed, it banned their plans for developing, or selling, the vacant land, because it the rules treat the two parcels with the same ownership as one.
So building was banned on the second lot, on which the family has paid taxes for decades, the PFL said.
Groen said of that fight, "The ruling … offends the letter and spirit of the Constitution's ban on uncompensated takings, by allowing government to deprive people of the use of their land simply because they happen to own another lot next to it."
PLF also fought on behalf of a Louisiana company that was being prevented from using its own land because of rules and regulations. The case involved Kent Recycling.
That case was very similar to the Sackett case, handled by the PLF, that was decided by the Supreme Court in 2012. The Priest Lake, Idaho, couple bought a residential lot and started work on their dream home. Along came the Environmental Protection Agency with a determination that the parcel contained "wetlands" and the couple's options were to abandon their land, seek a prohibitively expensive permit or face millions of dollars in fines.
The federal agency also contended the couple was not allowed to seek a judicial review of its decision.
But the Supreme Court ruled the EPA cannot issue a "drive-by" decision regarding wetlands and then prohibit the owner from using the property or challenging the decision.
The court said the EPA must provide a process through which a challenge to its decision can be addressed in a meaningful way. The case, also handled by the PLF, was called a "precedent-setting victory for the rights of all property owners."
The PLF also launched a fight when a Wyoming rancher obtained all the needed permits for a stock pond on his land near Fort Bridger, but the federal EPA then arrived on the scene after the fact and demanded fines of millions of dollars.