Bay Area couple wins lawsuit against TRPA, can build in Angora Fire area

In June, 2007, the Angora Fire swept through a neighborhood, taking with it 242 homes and 3.100 acres of trees and shrubs, forcing people to either rebuild or sell.

The homeowners at 889 Lake Tahoe Blvd did neither and did not rebank their right to rebuild the home in time, so the automatic right to rebuild on this property was lost. The lot ended up in foreclosure and was picked up for $5,000 by Ray and Teresa Burns. At the time of the sale, the lot came with a disclosure that the property contained some stream environment zone (SEZ).

When the Burnses went to try and build, they had Tahoe Regional Planning Agency (TRPA) come out to test the buildability of the lot. On the lot there were two soil pits Burns could choose from to get an Individual Parcel Evaluation System score (IPES) on.

"TRPA advised them of these two options at the time of this decision, how one (in SEZ) would result in a non-buildable score and the other (outside of SEZ) would result in a low, but buildable score," said Tom Lotshaw of TRPA. "They still chose the former for whatever reason."

The couple's response was the sue the TRPA. They claimed the government was essentially "taking their property" by not allowing them to build.

"Why the TRPA expert is even asking the property owner this question is somewhat befuddling because the property owner is not the expert and does not control the TRPA scoring process," John Green, lawyer for Pacific Legal Foundation (PLF) who represented the Burnses. "So the Burns somewhat arbitrarily picked one of the holes."

Green said his clients didn't understand why one part of the lot could received a different IPES score than another part.

Had they chosen the IPES score based on the other soil pit originally, the lawsuit could have been avoided according to Lotshaw. Now, after the lawsuit, TRPA has settled with the Burnses who now have the original IPES buildable score of 317 for the lot.

"We said from the start of this that they had options to resolve this other than a lawsuit, that we were more than willing and hoping to work with them through this issue," said Lotshaw. "It’s unfortunate it resulted in a lawsuit that didn’t accomplish anything for anyone that couldn’t have been accomplished otherwise."

The PCL lawyers said in a press release that the TRPA was violating the Fifth Amendment, which requires “just compensation” when government takes property for public use without compensation (a mandate that applies not just to outright seizure of property, but also when all use of private property is denied).

“Because of the strength of our Fifth Amendment claim, TRPA started to backtrack soon after we filed our lawsuit,” said PLF Attorney Christopher Kieser.

The Burnses will now move forward to build a 2,435 square foot home.