High Court Hears Property Rights Case Elderly Woman, Bureaucrats Clash Over Home-Building Plans

For nearly eight years, Bernardine Suitum, an elderly widow from Sacramento, has wanted to build a retirement home on her half-acre near Lake Tahoe.

But a government agency said erosion from the house would damage the clarity of the mountain lake on the California-Nevada border.

She sued, but lower courts said they lacked the evidence to assess her claim for compensation.

On Wednesday, in a potentially important clash of property rights and environmental protection, most Supreme Court justices expressed hostility toward the government or sympathy for Suitum, who is 82 and confined to a wheelchair.

“My goodness, why not give this poor, elderly woman a chance to go to court and have her case heard?” Justice Sandra Day O’Connor inquired irritably of a Clinton administration lawyer as an hour of brisk arguments drew to a close.

At stake in Suitum’s case is a technique widely used by state and local government agencies to protect farmland, historic buildings, open spaces, endangered species, sensitive watersheds and scenic coastal lands.

Instead of making cash payments for the loss of property rights, the agencies frequently offer “tradable development rights,” or TDRs, to landowners whose building rights are being restricted.

In Suitum’s case, the Tahoe Regional Planning Agency gave her four development credits. The agency said she could sell the credits to landowners in unprotected parts of the Tahoe area. The purchasers then could do more extensive construction than they could without the credits.

The estimated market value of the credits ranges from zero to $30,000, but Suitum’s lawyer, R.S. Radford, said she doesn’t want them and should not have to accept them. “Mrs. Suitum wants to build her house,” he said.

As matters stand, he said, the government has deprived her of all use of her property and should be forced to pay cash under the Constitution’s requirement of fair compensation for a governmental “taking” of private property.

Lower-court judges said her claim should not be heard yet because she had not tried to sell her TDRs.

Lawyers for the Tahoe agency and the Clinton administration provoked attacks from five of the nine justices by insisting that Suitum had been compensated - with the TDRs and that her 6-year-old suit still isn’t ready for a final decision.

Justices O’Connor and Anthony Kennedy called parts of the government’s arguments “strange.” Chief Justice William H. Rehnquist likened Suitum’s TDRs to gambling scrip that nearby casinos might not accept.

“You created the problem … why should the landowner have to wait?” Justice David Souter told Richard Lazarus, who represented the Tahoe agency.

Although the justices plan to rule by July only on the narrow issue of “ripeness,” the case has attracted many national organizations.

A variety of farm and property rights groups are backing Suitum. Planners, cities, governors, historic preservationists and seven states support the Tahoe agency, which was set up by California and Nevada in 1969 to protect the scenic lake basin’s natural resources from deterioration.