ORDER
I. INTRODUCTION: FACTUAL AND PROCEDURAL BACKGROUND
This аction arises from a challenge to Defendant Tahoe Regional Planning Agency’s (“Defendant” or “TRPA”) draft proposal and subsequent adoption of a new scenic review system (the “Scenic Review Ordinance” or “SRO”). The SRO represents TRPA’s response to the increase in size and visibility of residential housing in the Lake Tahoe Basin (the “Basin”) and the attendant decline in scenic quality as reported in TRPA’s 2001 threshold evaluation report. To accomplish its goal of limiting these reported negative scenic impacts, the Scenic Review Ordinance regulates the size, color, appearance, visibility, and other aspects of residential housing on littoral and shoreland properties 1 in the Basin and is designed to encourage structures to integrate and blend with the natural environment rather than contrasting with it.
The SRO is a multi-faceted, objective system that is designed to provide multiple options for permitting. It includes: (1) new design standards (relating to color and setbacks); (2) different levels of review depending on the scope of the project (ranging from exempt in-kind replacement to a comprehensive review for new residential construction); and (3) different options for compliance (standard option, visual magnitude option, or independent review). Of central importance to the SRO, the Contrast/Visual Magnitude Rating system uses a comprehensive objective scoring procedure, which numerically scores a house’s scenic impact, as viewed from the Lake towards its shore, based upon certain pre-determined traits. Basic traits of the proposed structure result in an objective color-contrast score. Examples of these basic traits are a structure’s color, the percentage of a structure’s perimeter which is visible, and the articulation and surface texture of a structure’s facade. A high color contrast score translates into more visible square footage allowed. Conversely, a low color contrast score results in less visible square footage allowed.
On October 22, 2002, Plaintiff The Committee for Reasonable Regulation of Lake Tahoe (the “Committee” or “Plaintiff’) filed a complaint (# 2) and asserted several claims. On January 16, 2003, the Committee supplemented (# 9) its original complaint with additional claims and factual assertions. TRPA then filed a motion to dismiss (# 15) on March 31, 2003. We held a hearing on February 19, 2004, and then entered an oral order (# 77) on Feb *1149 ruary 20, 2004, dismissing several of the Committee’s claims with prejudice. Our March 29, 2004, written order (# 78) dismissed most the Committee’s remaining claims with prejudice, except (1) its claim that TRPA was required to prepare an Environmental Impact Statement (“EIS”) under its Code of Ordinances and its Compact, and (2) its takings claim. Our written order (# 78) dismissed those two claims without prejudice and granted the Committee sixty (60) days to file an amended complaint to replead those two claims.
On August 13, 2004, the Committee filed an Amended Complaint and Petition for Review (# 96) (the “Amended Complaint”). TRPA filed a Motion to Dismiss (# 100) the Amended Complaint on September 10, 2004. The Committee opposed (# 102) the Motion and TRPA replied (# 106). TRPA’s Motion to Dismiss (# 100) is now ripe, and we now rule on said Motion.
II. GENERAL BACKGROUND: TRPA’s PURPOSE, STRUCTURE & THE SCENIC REVIEW ORDINANCE
The history of regulation at Lake Tahoe, TRPA’s role in such regulation, and relevant information about TRPA is detailed in depth at
Comm. for Reasonable Regulation of Lake Tahoe v. TRPA,
A. TRPA’s Compact.
In 1968, the legislatures of California and Nevada responded to the regional problems presented by the unique characteristics of Lake Tahoe and adopted the Tahoe Regional Planning Compact (the “Compact”), which set goals for the protection and preservation of the Basin and also created TRPA to “coordinate and regulate development in the Basin and to conserve its natural resources.”
Tahoe-Sierra Pres. Council v. TRPA,
The Compact, which created Defendant TRPA, continues to dictate TRPA’s goals, structure, responsibilities, powers, as well as other rules and requirements. See Compact, Art. 1(b) & (c). Among other things, the Compact’s findings and declarations of policy detail the public and private interests in protecting and enhancing the values of the Basin as well as the National and State interests in preserving environmental and recreational values. See id. at Art. I(a)(1)-(10). The Compact *1150 uses the concept of an “environmental threshold carrying capacity” to accomplish its goal of protecting and enhancing the values of the Basin, including scenic values. See id. at Art. 1(b) (granting TRPA with the “power to establish environmental threshold carrying capacities”); id. at Art. II(i) (defining an “[ejnvironmental threshold carrying capacity” as “an environmental standard necessary to maintain a significant scenic, recreational, educational, scientific or natural value of the region or to maintain public health and safety within the region”) (emphasis added). Although Article 1(b) of the Compact grants TRPA the power to establish these carrying capacities, Article V(b) of the Compact actually mandates that TRPA “shall develop ... environmental threshold carrying capacities for the region” within 18 months after the effective date of the amendments to the Compact.
B. Scenic Thresholds.
Pursuant to the Compact’s command to address scenic concerns through environmental threshold carrying capacities, TRPA has adopted differеnt environmental threshold carrying capacities addressing scenic concerns (“scenic thresholds”). See Compact, Art. V(b), Art. II(i); (see also Def.’s Request for Judicial Notice (“RJN”) 3 , Ex. 1 at Ex. A-10 to Resolution 82-11 (adopting a scenic threshold).) SR-1, a scenic threshold adopted in 1982, sets a standard for the quality of scenic resources from viewpoints along major roadways in the Basin and from the Lake towards shore. (Def.’s RJN, Ex. 1 at Ex. A-10 to Resolution 82-11 (adopting SR-1).) SR-1 is of particular concern to this lawsuit because the Scenic Review Ordinance, which is primarily aimed at regulating views from the Lake towards the shore, is designed to attain SR-1. (Def.’s RJN, Ex. 7 at App. B to 2001 Threshold Evaluation Report.)
C. The Regional Plan & Implementing Ordinances.
The Compact also authorizes TRPA “to adopt and enforce a regional plan and implementing ordinances which will achieve” any adopted environmental threshold carrying capacities. See Compact, Art. 1(b). Under the Compact’s mandate, the regional plan (“Regional Plan”) “shall be a single enforceable plan” and includes many correlated elements relating to the regulation of the Basin, including “[a] conservation plan for the preservation, development, utilization, and management of the scenic and other natural resources within the basin, including but not limited to soils, shoreline and submerged lands, scenic corridors along transportation routes, open spaces, recreational and historical facilities.” Id. at Art. V(c)(3) (emphasis added).
TRPA adopted its current Regional Plan for the Basin in 1987. In accordance with the Compact, TRPA has also adopted implementing ordinances (“TRPA’s Code of Ordinances” or “TRPA’s Code”), including the Scenic Review Ordinance, to try to achieve the scenic thresholds that have been established as environmental threshold carrying capacities and are identified in the Regional Plan. 4 (Def.’s RJN, Ex. 2.)
*1151 D. Threshold Evaluation Reports.
Section 32.8 of the Code of Ordinances directs that “TRPA shall prepare periodic reports on the attainment and maintenance of thresholds and standards” every five years. (TRPA’s Code § 32.8.) According to the Code, the periodic progress reports (“threshold reports”) “shall include, at a minimum[,][a] report on the amount and rate of actual progress toward threshold and standard attainment contributed by each compliance measure.” (TRPA’s Code § 32.8.A(1).) Under TRPA’s Code, the threshold reports also must include a report on the cumulative impacts on each threshold of projects approved by TRPA, a report on the extent to which the Basin is making progress towards achieving each threshold, and recommendations for implementation of supplemental compliance measures to ensure progress towards attainment. (TRPA’s Code § 32.8.A(2)-(5).)
The 2001 threshold report noted a negative trend in the attainment of SR-1. (See Def.’s RJN, Ex. 7 at 8-13 to 14 and Index No. SR-1.) The 2001 threshold report recommended adoption of mitigation measures that are similar to the requirements of the Scenic Review Ordinance. (See Def.’s RJN, Ex. 7.)
E. The Scenic Review Ordinance.
The Scenic Review Ordinance (the “SRO”) requires certain residential projects in shoreland or littoral parcels to meet objective aesthetic requirements to obtain a building permit. As detailed briefly at the beginning of this order, the SRO includes different levels of review depending on the extent of the project (no review for repair and maintenance; extensive review for new houses), and different options for compliance (basic mitigation standards, visual magnitude system, or an independent review). The SRO utilizes three major components to achieve its goal of minimizing the scenic impact of residential housing design: (1) design standards, (2) contrast rating/visual magnitudе rating System, and (3) different levels of review. 5 (Def.’s RJN, Ex. 15 at 116.)
1. Design standards.
Design standards are architectural techniques that can reduce the overall contrast of the built environment. (Def.’s RJN, Ex. 15 at 116.) TRPA had previously adopted design standards and the proposed amendments relate to color, setbacks, and glass. (Id.)
2. Contrast Rating/Visual Magnitude.
The contrast rating/visual magnitude rating procedure involves a complex rating of a proposed structure based on various factors, such as screening, color, the exterior surface’s pattern/texture, and the number of planes/degree of articulation, to determine the structures’ contrast with the natural environment. (Def.’s RJN, Ex. 17, App. H-l.) The rating procedure computes an overall score that corresponds to the amount of visible square footage allowed. (Id. at H-3.) Projects that blend in with the natural environment are intended to result in high scores, and projects that contrast with the environment should result in low scores. (Id. at H-2.) A high rating score translates into a greater allowance for square footage; conversely, a low score translates into a very small allowance for visible square footage. (Id. at H-3.)
*1152 3. Levels of Review.
The SRO also provides for several different levels of review. TRPA believes that this will allow for the streamlining of basic projects with little scenic impact and allow for more in-depth and objective treatment of projects that will have a greater impact. To streamline smaller projects, the ordinance exempts normal repair and maintenance (excluding painting or anything that affects color), as well as in-kind replacement. (TRPA’s Code §§ 4.2.A, 30.16.0(1).)
If a homeowner seeks a permit for a more extensive project, she has three basic options for obtaining it under the SRO. Under the “Standard Option,” as TRPA calls it, a permit applicant must show that her project meets a minimum visual contrast rating score through scenic best management practices (“BMPs”) and other standards (setback, visible facade, height limits, etc.) depending on the scope and extent of the project. (TRPA’s Code §§ 30.16.C(3), (4)(a), (5)(a).) Under the “Visual Magnitude Option,” applicants can design their structures to include visual breaks and to meet a given color contrast score for a desirable square footage of visible facade. (Id. at §§ 30.15.C(4)(b), (5)(b).) Finally, the applicant or TRPA staff may elect to initiate an independent review. (Id. at § 30.15.E.) The independent review may employ an independent expert using TRPA’s methodology (Id. at § 30.15.E(1)) or a scenic review panel composed of one member of TRPA’s choice, one member of applicant’s choice, and one member chosen by the two panel members that may use other professionally accepted methods of evaluating scenic impacts (Id. at § 30.15.E(2)).
III. MOTION TO DISMISS STANDARDS
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) will only be granted if “it appears beyond doubt that plaintiff can prove no set of facts in support of her claim which would entitle her to relief.”
Lewis v. Tel. Employees Credit Union,
Although courts generally assume the facts alleged are true, courts do not “assume the truth of legal conclusions merely because they are cast in the form of factual allegations.”
W. Mining Council v. Watt,
Review on a motion pursuant to Fed.R.Civ.P. 12(b)(6) is normally limited to the complaint itself.
See Lee v. City of Los Angeles,
If documents are physically attached to the complaint, then a court may consider them if their “authenticity is not contested” and “the plaintiffs complaint necessarily relies on them.”
Lee,
IV. ANALYSIS
As we stated above, the Committee has brought two claims in its Amended Complaint. One, the Committee alleges that TRPA failed to conduct the necessary environmental review because it did not prepare an Environmental Impact Statement (“EIS”). Two, the Committee brings an as-applied takings claim asserting that the Scenic Review Ordinance represents a taking of its members’ property rights without just compensation. We will address each claim in turn.
A. Claim One: TRPA Did Not Conduct an Adequate Environmental Review.
The Committee alleges that TRPA’s use of an Initial Environmental Checklist (“IEC”) to determine whether to prepare an Environmental Impact Statement (“EIS”) is inconsistent with the National Environmental Policy Act (“NEPA”). Although the Committee does not specify the legal grounds for its challenge under the Compact, we take this as an allegation that TRPA’s use of an IEC and not the more-demаnding Environmental Assessment (“EA”), as allegedly required by NEPA, means that TRPA has “failed to proceed in a manner required by law.” Compact, Art. VI(j)(5). The Committee further alleges that the Compact requires TRPA to prepare an EIS because the Scenic Review Ordinance will have a “significant effect on the environment.” (See Pl.’s Am. Compl., ¶ 38.) We take this as an assertion that TRPA’s determination that the Scenic Review Ordinance “could not have a significant effect on the environment” (TRPA’s Code of Ordinances § 5.2B(1)) and no EIS need be prepared (see TRPA’s Code § 5.6) was “lacking in substantial evidentiary support” or was “not supported by substantial evidence in light of the whole ree-ord[j” see Compact, Art. VI(j)(5).
1. Under the Compact, it is lawful for TRPA to rely on an IEC to make a finding that a matter “could not have a significant effect on the environment.”
a) TRPA’s IEC and EA procedures.
The Compact requires TRPA to prepare and to consider a detailed environmental impact statement when acting upon matters that have a “significant effect on the environment.” See Compact, Art. VII(a)(2). However, the Compact also mandates that TRPA “adopt ordinances prescribing specific written findings that the agency must make prior to approving any project in the region.” See Compact, Art. V(g). Pursuant to this power, TRPA has adopted ordinances to determine what written findings and procedures are required for environmental documentation, including whether a matter will have a *1154 “significant, effect on, the environment.” (See TRPA’s Code §§ 5.0—5.8.D.) TRPA’s Code of Ordinances mandates that TRPA use either an IEC or an EA to “determine whether an environmental impact statement shall be prepared.” (See id. at § 5.2.)
Under the first step of the environmental documentation process, the applicant (in this case, TRPA) must prepare an IEC. (See id. at § 5.2.A.) The IEC asks the applicant a series of questions related to potential environmental issues that are designed to elicit “yes” responses to matters that may have a significant effect on the environment. 6 (See id.; see also IEC prepared for Scenic Review Ordinance, Def.’s RJN, Ex. 13.) The Code requires that the IEC “describe and evaluate the significance of all impacts receiving ‘yes’ answers.” (TRPA’s Code § 5.2.A(1).) Apparently, the IEC need not elaborate further on “no” answers. (See IEC prepared for Scenic Review Ordinance, Def.’s RJN, Ex. 13.)
After preparation of the IEC, TRPA must decide if it has sufficient evidence to make a finding under TRPA’s Code Section 5.2.B whether the project either (1) “could not have” or (2) “may have” a “significant effect on the environment.” 7 (See TRPA’s Code §§ 5.2.B, 5.3.) Based on the information submitted in the IEC and other information known to TRPA, TRPA can make a finding under Code Section 5.2.B(1) that the proposed project “could not have a significant effect on the environment and a finding of no significant effect shall be prepared.” (Id., at § 5.2.B(1).) If a finding of no significant effect is made, “no further environmental documentation shall be required.” (Id. at § 5.6.) On the basis of information provided in an IEC, TRPA can also make a finding that a proposed project “may have a significant effect on the environment” and order the preparation of an EIS. (Id. at § 5.2.B(3).)
Alternatively, if TRPA determines that an IEC will not provide sufficient information to make the findings required by Code Section 5.2.B (whether a project “may” or “could not” have a significant effect on the environment), then TRPA shall prepare an EA. (Id. at § 5.3.) Ultimately, the Code requires TRPA to make the same findings based on an EA as were required with an IEC. (See id. at §§ 5.3.B, 5.2.B(1)-(3).) If the EA shows that the “proposed project may have a significant effect on the environment!,]” then “an environmental impact statement shall be prepared.” (Id. at § 5.2.B(3) (emphasis added).) If the EA shows that thе “proposed project could not have a significant effect on the environment” (Id. at § 5.2.B(1)), then “no further environmental documentation shall be required” (Id. at § 5.6). Finally, TRPA is required to make these findings under either the IEC or the EA process on the basis of “substantial evidence,” Compact, Art. VI(b), and its decision is subject to review in the appropriate court, see Compact, Art. VI(j)(1)-(2), if the decision is *1155 “lacking substantial evidentiary support” or is “not supported by substantial evidence in light of the whole record,” Compact, Art. VI(j)(5). 8
b) TRPA is not bound by NEPA.
As the statutory language in NEPA is very similar to Article VII of the Compact, the Committee believes that NEPA binds TRPA to provide similar environmental protection to the Basin. Compare 42 U.S.C. § 4332, with Compact, Art. VII. The Committee argues that the IEC procedure is inconsistent with the Ninth Circuit’s interpretation of similarly-worded language in NEPA. Compare 42 U.S.C. § 4332(2)(A) (mandating in part that “all agencies of the Federal Government shall” include a detailed environmental statement with proposals for legislation and other major Federal actions “significantly affecting the quality of the human environment”), with Compact, Art. VII(a)(2) (stating in part that TRPA shall prepare a detailed EIS “when acting upon matters that have a significant effect on the environment”). The thrust of the Committee’s position is that NEPA does not provide for the less demanding IEC procedure to determine whether a project has a “significant effect on the environment;” therefore, the Committee argues that TRPA’s interpretation of the Compact provides less environmental protection to the Basin than Congress intended when it approved the amended Compact, which was modeled in part on NEPA.
To bolster its argument, the Committee relies on the fact that Congress enacted NEPA in 1970, ten years before the Compact was amended in 1980. Moreover, Article VII, in its entirety, was drafted and appended to the then-existing Compact. Since NEPA was enacted before Congress approved the amended Compact and contains similar language to the newly-added Article VII, the Committee argues that previous judicial and agency interpretations of NEPA are binding on TRPA.
See Yates v. United States,
*1156
Although
Sahara Tahoe
was decided a few months before Congress approved the amended Compact, our reasoning in
Sahara Tahoe
supports the determination that TRPA is not a federal agency and it is, therefore, not directly governed by NEPA.
See Sahara Tahoe,
504 F.Supp, at 762-763 (relying on the Supreme Court’s reasoning in
Lake Country Estates, Inc. v. TRPA,
c) TRPA’s IEC procedure is a reasonable interpretation of the Compact.
Because NEPA is only persuasive authority for interpreting Article VII of the Compact, our review in this case is limited to whether TRPA’s construction of its Compact and its adoption of the IEC procedure is reasonable.
See Chevron U.S.A., Inc. v. Natural Res. Def. Council,
In its opposition brief,. the Committee has cited several opinions addressing NEPA’s EIS procedure that were issued after the adoption of the Compact in 1980. Even if we were to accept the Committee’s argument that Congress was presumed to have intended then-existing judicial interpretation of NEPA to apply to the Compact,
see Yates,
Furthermore, as pointed out by TRPA, the IEC procedure is not necessarily inconsistent with NEPA. NEPA mandates thаt “[ajgency procedures ... shall include ... [sjpecific criteria for and identi *1157 fication of those typical classes of action: ... [w]hich normally do not require either an environmental impact statement or an environmental assessment.” 40 C.F.R. § 1507.3(b)(2)(ii) (2004). An identical regulation was in place in 1980, when Article VII of the amended Compact was approved by Congress. See 40 C.F.R. § 1507.3(b)(2)(ii) (1980). Therefore, it is clear that NEPA’s regulations, both in 1980 and in 2002 (when the events at issue in this case occurred), contemplated situations where no EA or EIS would be necessary to determine the extent of the environmental impact. This supports the contention that TRPA’s less stringent IEC procedure is not contrary to the spirit or intent of NEPA, as it was understood by Congress in 1980, because NEPA clearly contemplated situations where no EA or EIS would be required. TRPA merely adopted a different, perhaps more flexible method, for making such a determination to not prepare an EA or an EIS. In sum, our review of the regulations passed pursuant to NEPA and judicial interpretations of NEPA do not render TRPA’s IEC procedure unreasonable.
Although the IEC ordinance does not seem to mesh perfectly with the contours of this case, as it is unclear whether this is a “project” or the enactment of an ordinance
(see, supra,
note 8), the use of an IEC to flag potential significant environmental impacts is not unreasonable under the facts of this case. First, TRPA is a land use planning agency with local responsibilities (such as approving permits to expand one’s home) that are not typical of the larger, one-time projects that are subject to NEPA.
See, e.g., Maryland-National Capital Park & Planning Comm’n v. U.S. Postal Service,
Therefore, in this case, we find that TRPA’s interpretation of its Compact — ■ adopting an ordinance that permits it to use an IEC to determine that the Scenic Review Ordinance “could not have a significant effect on the environment” — is reasonable, and, thus, not contrary to law. We note that this finding does not authorize the use of an IEC in all cases because TRPA also must satisfy its obligations under the Compact to justify its findings on the basis of “substantial evidence.” Compact, Art. VI(b); Compact, Art. VI(j)(5). We simply hold that, under the Compact and facts of this case, TRPA’s construction of its Compact is reasonable; therefore, TRPA may use an IEC to make a finding of no significant effect on the environment, so long as such a decision is based on “substantial evidence.”
2. The meaning of “substantial evidence.”
Our previous written order (# 78) analyzed the meaning of “substantial evidence.” For simplicity, we will only re *1158 peat the relevant portion of that analysis here.
The deferential “substantial evidence” standard of review is common in judicial review of agency decisions.
See Aegerter v. City of Delafield,
3. TRPA had “substantial evidence” to make its determination that no EIS was required.
TRPA prepared an IEC and determined that “[t]he proposed project could not have a significant effect on the environment and a finding of no significant effect shall be prepared.” (Def.’s RJN, Ex. 13 at p. 18.) TRPA argues, therefore, that the Code and the Compact do not require it to prepare an EIS. See Compact, Art. VII(a)(2); (TRPA’s Code § 5.6.) We previously held (# 78) that the Committee’s original complaint did not allege facts that an EIS was required. Like the Committee’s original complaint, most of the allegations in its amended complaint are merely conclusory allegations related to the need to prepare an EIS (“TRPA’s actions will result in a direct physical change to the environment”) or the requirements of an EIS if one was prepared (“TRPA failed to consider alternatives to the proposed project”). (Pl.’s Am. Compl., ¶ 38(b) & (e).) The sole new factual contention raised in the Amended Complaint is that “TRPA’s scenic regulations and visual magnitude concept will result in a negative impact on the quality of architectural design at Lake Tahoe, including the promotion of designs which break up the facade of a home.” (Id. at ¶ 38(n).) Essentially, the Committee is arguing that the Scenic Review Ordinance will have a negative impact on its members’ ability to freely design structures on their properties; thus, resulting in a significant effect on their man-made environment.
However, we believe that this rationale twists the concept of “significant effect on the environment” beyond its breaking point. TRPA was created, in large part, because “increasing urbanization [was] threatening the ecological values of the regionf,]” Compact, Art. 1(a)(5), and there was a need to maintain “the significant scenic, recreational, educational, scientific, natural public health values provided by the Lake Tahoe Basin[,]” Compact, Art. 1(a)(6). TRPA’s scenic thresholds, its Regional Plan and its Code of Ordinances focus on the impact that the man-made environment has on the scenic natural beauty of the Lake Tahoe Basin; neither the scenic thresholds nor the Compact itself are meant to protect the beauty of residential design from encroachment by the natural beauty of the Basin.
We see no indication in TRPA’s Compact or its Code that “significant effect on the environment” was meant to include significant effects on the quality and design of one’s home.
See, e.g., Maryland-National Capital Park,
We note that our inquiry into potential “significant effect[s] on the environment” might have been different had the Committee alleged facts or put forth cognizable theories that called into question the conclusions reached in the IEC. However, the Committee does not point out any significant effect on the environment that is cognizable under the Compact; thus, despite taking as true the facts alleged in the Committee’s Amended Complaint, the judicially-noticed record establishes that TRPA’s IEC procedure provided “substantial evidence” that the Scenic Review Ordinance will not have a “significant effect on the environment.” The Committee’s other conclusory and/or counter-intuitive statements to the'contrary are not sufficient in this context to overcome TRPA’s motion to dismiss.
See In re Stac Elecs.,
In conclusion, the Committee’s Amended Complaint fails to allege facts raising a substantial question of whether an EIS was required under the Compact, or that TRPA’s decision to not prepare an EIS was either “lacking substantial evidentiary support” or “not supported by substantial evidence in light of the whole record.”
9
See
Compact, Art. VI(j)(5). The Committee has not alleged any facts that would call into question the conclusions reached by the IEC regarding environmental impacts; therefore, we find that the IEC provided more than a mere “scintilla of evidence” that an EIS was not required and the IEC also includes “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
See Cellular Tele.,
B. Claim Two: TRPA Effected a Taking of the Property of Committee’s Members under the Penn Central test.
As authorized by our order (# 78), the Committee’s Amended Complaint (# 96) asserts only an as-applied takings claim under the Penn Central test. In its Mo *1160 tion to Dismiss (# 100), TRPA argues that the Committee lacks associational standing to raise such a claim on behalf of its members. The Committee counters that it has standing to raise this claim because it seeks only equitable relief. Since the Committee previously brought a facial challenge, we have not yet addressed the associational standing issue with regards to an as-applied takings claim. To address this standing issue, we will first lay out the general law of an as-applied takings claim under the ad hoc, fact-intensive legal standard because this standard is highly relevant to the standing issue. Then, we will analyze the threshold question of whether an as-applied takings claim is susceptible to the requirements of associational standing under the facts of this ease.
1.Takings Clause.
The Takings Clause of the Fifth Amendment to the United States Constitution provides as follows: “nor shall private property be taken for public use, without just compensation.” U.S. Const, amend. V. The Takings Clause “is designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by thе public as a whole.”
Penn Central Transp. Co. v. City of N.Y.,
The Takings Clause is applicable to the States through the Fourteenth Amendment.
Dolan v. City of Tigard,
2. Facial v. as-applied takings.
A facial takings challenge asserts that the mere enactment of a statute constitutes a taking, as contrasted to an as-applied challenge, “which ‘involves a claim that the particular impact of a government action on a specific piece of property requires the payment of just compensation.’ ”
See Hotel & Motel Ass’n v. City of Oakland,
3. Regulatory takings.
The government can violate the Takings Clause either by direct government appropriation of property without just compensation as explicitly enumerated in the text of the Fifth Amendment; or the government can effect a taking by government regulation, which is known as a regulatory taking and is not specifically referenced in the text of the Fifth Amendment.
See Tahoe-Sierra Pres. Council,
4. As-applied Penn Central analysis of regulatory takings.
Regulatory takings, such as the claims raised by the Committee, are analyzed under the standard laid out in
Penn Central Transportation v. City of New York,
The Supreme Court’s ad hoc, fact-based
Penn Central
inquiry is “designed to allow careful examination and weighing of all the relevant circumstances.”
See Tahoe-Sierra Pres. Council,
Under the
Penn Central
test, a property owner is not entitled to the most beneficial use of the property.
See Penn Central,
5. Associational standing to raise as-applied takings claim under Penn Central.
In analyzing the associational standing issue, we will first lay out the prerequisites for associational standing. Then, we will detail the reasons that the Committee’s as applied takings claim fails to meet said requirements because of the nature of the ad hoc, fact-specific Penn Central test.
a) Associational standing.
One element of the case and controversy requirement under Article III of the Constitution is that the plaintiff, including an association, must have standing to raise each claim. An organization may sue on behalf of its members in a representational capacity if the following tests are met: “its members would otherwise have standing to sue on their own right; the interests it seeks to protect are germane to the organization’s purpose; and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”
Hunt v. Wash. State Apple Adver. Comm’n,
In order to assess associational standing, we must also look to whether the
*1162
individual members of the association have standing.
See Hunt,
b) The Committee lacks associational standing.
Under the facts alleged in the Committee’s Amended Complaint (# 96), the first two elements of associational standing are met. As to the first requirement of associational standing, the Committee’s members would have standing to sue individually. The Amended Complaint alleges that the Committee’s members “are being denied permit applications” (Pl.’s Am. Compl., ¶ 2) and that this “represents a confiscation by TRPA of over $100 million” (Pl.’s Am. Compl., ¶ 41). This is sufficient to allege injury in fact and a causal connection. 10 Furthermore, the final element of individual standing (redressability) is met because a ruling in the Committee’s favor on the takings issue would entitle its members to either just compensation or an injunction.
As to the second element of associational standing (suit is germane to the Committee’s purpose), this test is also met because the Amended Complaint makes it clear that the Committee was formed “to promote and support the protection of Lake Tahoe through effective, fair, and reasonable regulation of building development and use within the Lake Tahoe basin.” (Pl.’s Am. Compl., ¶ 2.) Thus, the Committee’s challenge to the Scenic Review Ordinance, which is an ordinance thаt allegedly seeks to overly regulate and restrict housing design, is germane to the group’s purpose of promoting “effective, fair, and reasonable regulation of building development and use” in the Basin.
Therefore, the dispositive consideration turns on the third prong of associational standing: whether the as-applied takings claim or the relief requested will require the participation of the Committee’s members.
Hunt,
However, in this case, there is no indication that Congress has abrogated this prudential requirement so that a group representing homeowners may make an as-applied takings claim on the homeowners’ behalf. As discussed extensively in our written order (#78), the Scenic Review Ordinance (the “SRO”) will affect homeowners in distinctly different ways depending on the type of project they seek a permit for (exempt in-kind replacements or major remodels) and the specifics of their homes (e.g., the color of the house, the visible square footage, the number of windows, etc.). The application of the multi-faceted SRO to the fact-specific situation presented by each different parcel of land, the type of permit sought by the homeowner, and the varied options for compliance presented by the SRO mitigates against finding that the prudential component of associational standing is met in this instance. Furthermore, the investment-backed expectations and the economic impact will differ from homeownеr to homeowner.
The Committee tries to overcome this prudential hurdle by seeking solely equitable (declaratory and injunctive) relief.
See, e.g., Hunt,
While the Committee might be correct that the equitable relief that it requested does not require the participation of its members, it must also demonstrate that the claim itself does not require the participation of its members. However, under the fact-specific legal test applied in this instance, it is clear that the claim itself will require the participation of the Committee’s members. 11 Thus, we find that the *1164 prudential concerns presented by the Committee’s takings claim are real and substantial, and they advise against finding associational standing in this instance.
Moreover, the cases relied on by the Committee are distinguishable. First, unlike
Pennell, Hunt,
and
Warth,
the Committee’s takings claim involves analysis under the ad hoc, fact-specific
Penn Central
test; such an analysis is not conducive to generalizations, but must focus on the specifics of each parcel of land.
See Tahoe-Sierra Pres. Council,
Second,
Warth
is also distinguishable; both because it did not involve a takings analysis under
Penn Central,
and because the
Warth
Court found that associational standing did not exist under the facts alleged in the complaint.
Third, and finally, as pointed out by TRPA, most of the other courts to address this issue have come to the conclusion that an association lacks standing to assert an as applied takings claim under
Penn Central. See Ga. Cemetery Ass’n, Inc. v. Cox,
Therefore, we hold that the Committee does not have associational standing to bring аn as-applied takings challenge because of the ad hoc, fact-specific legal test to be applied and the different options for review allowed by the Scenic Review Ordinance. The prudential component of associational standing bars this action because the Committee’s claims are derivative of its members’ claims and our analysis of these claims will necessarily require the participation of individual homeowners in this lawsuit. 12 We think the better and wiser course is to leave it to the individual homeowners to decide when, and if, to raise an as-applied takings claim in their individual capacities when such claims are ripe for review.
y. CONCLUSION
The Committee has failed to state a claim for which relief can be granted. First, TRPA’s construction of the Compact is not “contrary to law” because the IEC procedure is a reasonable interpretation of the Compact. Second, TRPA did not violate the Compact in this case because the IEC procedure provided “substantial evidence,” more than a mere scintilla of evidence, that the Scenic Review Ordinance could not have a “significant effect on the environment” because the Committee failed to identify any environmental effect that is cognizable or requires the preparation of an EIS under the Compact. Finally, the Committee does not have associational standing to assert an as-applied takings claim on be-" half of its members under the ad hoc, fact-based Penn Central test. For prudential reasons, this type of taking claim must be raised by an individual homeowner under the facts of this case. 13
THEREFORE, IT IS HEREBY ORDERED THAT, as addressed above, TRPA’s motion to dismiss (# 96) is GRANTED. Both of the Committee’s claims are DISMISSED with prejudice.
IT IS FURTHER ORDERED THAT this disposes of the remaining claims in this case and the claims in this case have been resolved in favor of Defendant TRPA and against Plaintiff the Committee. The Clerk shall enter judgment accordingly.
Notes
. TRPA’s Code of Ordinances defines "[s]horeland” as "[t]he distance from the highwater line of Lake Tahoe to the most landward boundary of the littoral parcel, or 300 feet landward, whichever is lesser.” (TRPA's Code of Ordinances (the "Code”) § 2.2, Def.'s Request for Judicial Notice, Ex. 2 at 2-25.) TRPA’s Code defines a "HJittoral parcel” as "[a] parcel of land adjoining or abutting the highwater elevation of a lake.” (TRPA’s Code § 2.2.) In our written order (#78), we tоok judicial notice of the definitions listed here.
. Pursuant to our order (# 73), we take judicial notice of the Compact, which was attached to Defendant’s first motion to dismiss (# 15). For reference, the Compact is published at 96 Pub. Law No. 96-551, 94 Stat. 3233 (1980), NRS 277.200 et seq., and Cal. Gov't Code § 66801 et seq., and can also be viewed and accessed at http://www.trpa. org/documents/about _trpa/ Bistate_ Compact.pdf. Because the Compact can be viewed at these sources, we will cite only to the relevant portions of the Compact throughout the remainder of this order.
. Pursuant to our order (# 73), we judicially noticed several of the exhibits that were attached to Defendant's RJN (# 16, # 53, # 56). When citing to these exhibits, we will note the appropriate exhibit number and any other relevant information that will assist in identifying the citation.
. TRPA's Code of Ordinances can be accessed at either http://www.trpa. org/default.aspx? tabindex=2 & tabid=172 or Exhibit 2 of Defendant's RJN. For simplicity, we will henceforth only cite to the relevant Section of TRPA's Code of Ordinances rather than Exhibit 2 of Defendant's RJN.
. Although we briefly discussed the SRO in the opening to this order, we will detail the SRO in greater depth, perhaps repeating some information, because the intricate workings of the SRO are directly relevant to our analysis of associational standing.
. The IEC asks questions that are framed in a manner that "yes” answers will flag,projects that might affect the environment. Examples • of these types of questions are: "[wjill the proposal result in [djeterioration of ambient (existing) air quality?” and "[wjill the proposal result in [a] change in the natural functioning of an old growth ecosystem?” (Def.’s RJN, Ex. 13 at 2,6.)
. TRPA can also find that a proposed project "could have a significant effect on the environment, but due to the listed mitigation measures which have been added to the project, could have no significant effect on the environment.” (TRPA's Code § 5.2.B(2).) For simplicity, we will focus on the two other options (finding that a project either may have or could not have a significant effect on the environment) because mitigation measures are not currently at issue in this case.
. The Compact is somewhat unclear as to the proper standard of review to apply in this instance. Although TRPA's Code of Ordinances states that an IEC shall be completed by "an applicant for a project” (TRPA’s Code § 5.3.A) and a decision to apprоve a project is reviewed for "substantial evidence in light of the whole record[,]” Compact, Art. VI(j)(5), it also appears that the Compact sets forth a different standard to review a challenge to the enactment of an ordinance, see Compact, Art. VI(j)(5). In this case, the Committee also challenges enactment of the Scenic Review Ordinance and the standard for challenging ordinances is whether the act or decision was "lacking substantial evidentiary support.” See Compact, Art. VI(j)(5). Notwithstanding the semantic difference between the two standards, we believe that these two standards are essentially identical. Under either standard, we review for whether TRPA based its decision on "substantial evidence.” See Compact, Art. VI(b) (stating that TRPA must make written findings on the basis of "substantial evidence” before adopting ordinances); Compact, Art. VI(j)(5).
. We likewise find that TRPA was not required to prepare an EIS to address economic concerns. Although an EIS must address economic considerations as it relates to mitigation measures, mitigation measures are not at issue in this case. Furthermore, the issue in this case is whether TRPA was required to prepare an EIS, not what an EIS should look like if prepared, and economic considerations are not sufficient to trigger the need for an EIS under the Compact or the Code.
. Although TRPA asserts that the Committee's allegation that its members have been denied permits is false, we are bound to take this allegation as true and construe it in the light mpst favorable to the Committee in determining the issue of standing. See
Warth v. Seldin,
. A useful comparison could be made between the two types of claims raised by the Committee in its Amended Complaint. In contrast to the Committee's as-aрplied takings claim, the Committee's EIS claim does not involve the participation of the Committee’s members because it involves a challenge to the environmental processes followed by *1164 TRPA. This claim revolves around TRPA's alleged unlawful interpretation of the Compact and its alleged failure to base its decision on substantial evidence; thus, unlike the Penn Central takings claim, the EIS claim does not depend on the facts and circumstances of the person challenging the action. Therefore, the Committee had associational standing to raise the EIS claim, but lacks associational standing to raise a claim, such as an as-applied Penn Central takings claim, where the analysis of the claim differs depending on the person or entity bringing said claim.
. Since we resolve this case on the basis of standing, we need not reach TRPA's assertion that the Committee's claim is not ripe for review. We note that the Committee’s claims appear to be ripe because the Committee alleged its members have been denied permits. (Pl.’s Am. Compl., ¶ 2.) We must accept this allegation as true for the reasons set forth in note 10.
. We note that this order should not be construed as barring an individual homeowner from raising such a taking claim if she so chooses.