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High Court Gives Lake Tahoe Landowners a Sympathetic Ear

Law: Divided justices debate whether a building ban merits compensation for hundreds of families.


WASHINGTON — The Supreme Court justices, hearing arguments Monday in a Lake Tahoe property rights case, appeared sympathetic to the hundreds of families who have been barred from building homes on their lots, but also wary of forcing local governments to pay compensation whenever they delay new development.

During a lively hourlong argument, the justices seemed sharply divided on the Tahoe case, which pits the interests of land-use planners against those of property owners.

Ten years ago, the high court sided with a South Carolina man who was told that he could not build anything on his beachfront lots. The court ruled that property owners who are denied all use of their land must be paid for their loss. The Tahoe case raises the question of whether this rule of "mandatory compensation" should be extended to instances where the government temporarily freezes development.

In 1981, the Tahoe regional planning agency put a moratorium on new housing around the lake because runoff from the hillsides threatened to turn the clear blues of the lake into algae green.

Three years later, about 700 families sued because their lots were deemed susceptible to erosion and they were barred from building.

Chief Justice William H. Rehnquist and Justice Antonin Scalia spoke up for the property owners during Monday's arguments.

"It doesn't seem fair to me to say these people should bear the burden" of preserving the lake, Scalia said. "It's a general societal problem for which the entire society should pay. . . . Why should some individuals have to make the sacrifice?"

When a lawyer for the regional planning agency defended the "temporary moratorium," the chief justice interjected sarcastically, "Maybe it should all be a park."

Rehnquist and Scalia are the court's strongest champions of property rights, but they were not alone in taking up the plight of the lot owners.

Justice Stephen G. Breyer, a native of San Francisco, also noted the potential unfairness of the moratorium.

"The justification here is excellent--saving Lake Tahoe," he said. But the method of accomplishing that end is questionable, he added. "We're saying, 'You won't be able to build on your land.' Aren't they supposed to have some remedy at law?" he asked.

The proper remedy, said the lawyer for the planning agency, is for the individual property owners to bring separate lawsuits claiming that they were victims of unreasonable treatment by the government.

But that is a cumbersome, costly and unrealistic solution, said Santa Monica attorney Michael M. Berger, representing the Tahoe lot owners. He argued instead for an automatic rule.

"If it's a total prohibition on using your land, it's a taking," Berger said. In such instances, the property owner deserves compensation, even if it is a temporary prohibition, he said.

To make his point, he cited the example of a car. "If I take your car and park it in a garage for a year, you've lost the use of it," he told the justices. The owner would expect to be compensated for the loss, even if the car were returned later, he said.

But Justice Sandra Day O'Connor, among others, worried about forcing local agencies to pay compensation whenever they deny building permits, even temporarily.

"What about your basic zoning laws?" she asked. "Is that an immediate taking?"

Not necessarily, Berger replied, if it involves an ordinary process of obtaining a building permit.

Washington attorney John G. Roberts, who defended the regional planning board, argued that a moratorium does not strip owners of their property. "Because the regulation is temporary, the land retains value," he said.

To this, Justice O'Connor said that the supposedly temporary moratorium has been in effect for two decades. "It's been 22 years for some of them. And there's no end in sight," she said.

"You are talking about a government agency that is making sure this land lies fallow," Scalia said.

Later this week, the justices will vote on the case of Tahoe Sierra Preservation Council vs. Tahoe Regional Planning Agency, 00-1167. It will be several months before a decision is announced.

Meanwhile, in other actions, the court:

* Refused again to hear a free-speech challenge to the California law that protects the rights of celebrities and their heirs to profit from their likeness.

Without comment, the justices turned away an appeal from Los Angeles artist Gary Saderup, who had done charcoal drawings of the Three Stooges--Moe, Larry and Curly--and reproduced them on T-shirts.

The heirs sued, and the California Supreme Court agreed last year that Saderup must pay them the $75,000 in profits he received. Under the so-called "right to publicity" law, the heirs retain the publicity rights for 70 years after the death of a celebrity. (Saderup vs. Comedy III Productions, 01-368)

* Refused to stop a California invasion-of-privacy lawsuit brought by truckers who discovered that video cameras had been installed in the men's room at a company shipping hub in Mira Loma in 1997.

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