Court Weighs Widow's Right to a Lake Tahoe View

The right to control what happens on your property is something bone-deep for most Americans - a sentiment that often flourishes alongside such prized patriotic "rights" as low taxes, free speech, and locally run schools.

Yesterday the United States Supreme Court heard arguments on whether property bought by an elderly widow for a "dream home" was wrongly denied a building permit in order to preserve the water quality of Lake Tahoe in Nevada.

The case is being closely followed, not only because it presents a sympathetic owner against popular environmental laws - but because a Supreme Court ruling for the owner could mark a turning point in the ongoing battle between property-rights advocates and states. It may also help define what is "just compensation" under the Constitution for private land "taken" by the state.

The rural West, Nevada in particular, has become a hotbed of discontent over the control and use of federal, state, and private lands.

Since the 1970s, the high court has given states latitude to "take" or limit the use of private property - in order to protect ecosystems, wetlands, special agricultural areas, public parks, or historic preservation zones.

Whether or not the nine justices will create new rights for owners was unclear yesterday. However the justices clearly felt Bernardine Suitum had been wrongly denied access to the courts to pursue her suit against the state.

"Why not give this poor elderly woman the right to take her case to court?" asked Justice Sandra Day O'Connor.

In this case, Mrs Suitum was denied a building permit by an environmental code created by California and Nevada. In compensation, she was given four "development credits." Such credits can be sold to other builders who use them to remove other zoning codes and allow for expansion. The credits are in wide use in various states and cities that have environmental or historic areas - as a form of compensation.

Under current law, owners must try and sell or dispose of property using these means of compensation - before going to court with a claim or grievance.

However, Suitum's lawyers argued yesterday the development credits in Tahoe are nearly worthless - and so the point of whether or not a taking had been made is moot. It had been, they said. "There is either a value, easily determined, or there is not," said her lawyer, R.S. Radford. "It is unfair to Mrs. Suitum to test a market that doesn't exist."

He went on to say that Suitum's right to sue does not begin when a government official reviews how well or poorly she has dealt with transfer credits - but with the original government decision to halt any building on her property.

Justice Antonin Scalia sarcastically pointed out that the property could be used for "playing volleyball, and things like that."

Lawyers for California and Nevada argued that citizens aren't entitled to instant access to the courts any time someone decides their property has been unfairly "taken." They argued it isn't asking too much for a citizen to first deal with appropriate state agencies before going to court, and that Suitum had not.

Richard James Lazarus, lawyer for the Tahoe Regional Planning Agency, stated that the case was unique since no market had been determined for Suitum's property, since she chose not to discover its value - and hence a suit could not be filed.

Justice David Souter responded: "The only thing that is unique is that you, the agency, created the problem" that Suitum now is being asked to solve. Justice Ruth Ginsburg echoed this point.

THE facts in Suitum v. Tahoe are the stuff of Sunday evening TV movies. Suitum was an Air Force bride who never had a permanent home. Her husband passed on in 1982 before the two could build their dream A-frame retirement house on a wooded plot in Lake Tahoe. The Suitums bought the lot in the 1970s - in a neighborhood under scrutiny by the Tahoe Regional Planning Agency, formed in 1969 by the states of California and Nevada to monitor the troubled ecology of Lake Tahoe.

In 1980, after 10 years of deteriorating water quality in the lake despite new efforts, the agency cracked down. The result was a 1987 plan to stop pollution run-off into the lake by controlling property in something called "stream environment zones" located around the lake. These are areas where the agency determined a disruption of topsoil and vegetation will release contaminants in the lake. The zones make up only 17,700 of the 205,000 total acres in the Tahoe basin. But the Suitum's plot was in one.

Now, 15 years after buying the lot, Mrs. Suitum is determined to either build, or to make the state pay for "taking" her land. She has lost two lower appeals. The courts both upheld the state's contention that Suitum must go through proper channels before making a claim. Suitum says she is a housewife who knows nothing about regulations and requirements. She simply feels her land has been wrongly appropriated - and yesterday the highest court in America was willing to hear her case.

The modern right for "taking" is based on a 1970s case. In it, the high court ruled that property owners around New York City's historic Penn Central Station could use development credits to expand property elsewhere. Credits were ruled as compensation for the taking. Then Justice William Rehnquist dissented.