landowners eye high-court case
STAFF AND WIRE REPORTS
Tuesday February 27th, 2001
Lake Tahoe homeowners are closely watching a U.S. Supreme Court
land-use case in Rhode Island for help in taking their similar dispute to
the highest court, a lawyer said Monday.
On Monday, the high court heard arguments in the Rhode Island case, in
which developer Anthony Palazzolo sought state approval to fill in 18
coastal wetland acres in Westerly, R.I. He was turned down each time, and
in 1988 he sued for about $3.1 million he says he would have earned by
building 74 houses on the land.
“I’m optimistic that the landowner will prevail in this case,” said
Larry Hoffman, attorney the Tahoe Sierra Preservation Council, which has
filed a petition requesting the U.S. Supreme Court to rule on its
Hoffman said that at least five Supreme Court justices have demonstrated
support for landowners’ rights.
On Monday, Palazzolo’s lawyer argued that the landowner had been
deprived unjustly of control of his property. “Mr. Palazzolo can make no
use whatsoever of any of his wetland,” his lawyer, James Burling, told
The Constitution’s Fifth Amendment bars the government from taking
property without fair payment. In 1992, the justices bolstered property
owners’ right to payment when government regulations strip their land of
The issue in the case is similar to the debate surrounding to a Tahoe City
legal action. Last month, the Tahoe Sierra Preservation Council filed a
petition requesting the U.S. Supreme Court to rule on its 17-year-old
lawsuit, which alleges that regulations imposed by the Tahoe Regional
Planning Agency illegally robbed its clients of their property rights.
The property group contends a series of regulations imposed by TRPA in the
early 1980s precluded any economic use of single-family lots owned by 449
people without compensation. Landowners seek some $27 million in damages
against the bistate agency established by Congress in 1969 to protect Lake
Hoffman said he expects the high court to decide whether to hear the Tahoe
case by this summer. Hoffman said the high court has agreed to look at one
major land-use case in each of the last several years. He said he hopes
the justices will agree to examine the Tahoe case in its next term.
In a convoluted argument session on Monday, the justices considered
several questions in the Rhode Island case:
o Was Palazzolo’s case ready to be heard by a court, since he had never
sought permission to build the 74-lot subdivision that was the focus of
o In deciding whether government limits on filling in wetlands harmed
Palazzolo economically, should courts look only at the 18 acres of wetland
or the full piece of land, which includes a higher-ground area on which a
house could be built?
o Did he lose his right to sue since the limits on filling wetlands
predated his acquisition of the property in 1978?
Burling contended Palazzolo could sue because a prior owner of the land
had the right to reclaim the wetland. Justice David H. Souter expressed
doubts. “If rights to land use pass from owner to owner, … how far
back does the chain go?” he asked. “It seems there is no logical
stopping place until you get to Roger Williams and the 17th-century
settlement” of Rhode Island.
But Justice Sandra Day O’Connor wondered about a “poor little old
widow woman” who cannot develop her land and sells it to a new owner who
challenges the land-use regulation. “What’s the matter with that?”
State Attorney General Sheldon Whitehouse contended “there is value in
this property” because a home could be built on the higher-ground area
of the land.
Palazzolo had sought to build a beach club on the wetland and had filed an
earlier application to fill in the land without specifying how the land
would be used.
“Do you know any zoning authority in the United States that would allow
a major filling without knowing what would be constructed on it?”
Justice Anthony M. Kennedy asked the man’s lawyer. Later, however,
Kennedy told Whitehouse that at some point the state had an obligation
“to come forward and say what it will allow.”
The Rhode Island Supreme Court ruled against Palazzolo, saying his claim
was not ready to be heard by a court because he never sought permission to
build the 74-home development.
The court also said he had no “reasonable investment-backed
expectation” because the regulations were in place before he acquired
The case is being closely watched by organizations on both sides of the
property-rights debate. Among those supporting Palazzo are Defenders of
Property Rights, the National Association of Home Builders and the
American Farm Bureau Federation.
Supporters of Rhode Island include the National Wildlife Federation, the
National Conference of State Legislatures and 18 states.
The case is Palazzolo v. Rhode Island, 99-2047.
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