Full opinion text
ORDER EDWARD C. REED, Jr., District Judge. This action arises from a challenge to the Tahoe Regional Planning Agency’s (“TRPA”) draft proposal and subsequent adoption of a new scenic review system— the Scenic Review Ordinance — which seeks to regulate the size, color, appearance, visibility, and other aspects of residential housing on littoral and shoreland properties in the Lake Tahoe basin. The Scenic Review Ordinance represents TRPA’s response to the declining scenic quality reported in its 2001 evaluation report and TRPA’s attempt to develop a more objective and standardized system to limit the “scenic impact” resulting from new residential construction and residential remodels in the shoreland. The Scenic Review Ordinance attempts to encourage structures to integrate and blend with the natural environment rather than contrasting and standing out. In order to encourage residential structures to blend rather than contrast with the natural environment and to provide different options to shoreland parcel owners, the Scenic Review Ordinance includes new design standards (relating to color and setbacks), different levels of review depending on the extent of the project (ranging from exempt in-kind replacement to a comprehensive review of new residential construction), and different options for compliance (Standard, Visual Magnitude System, or Independent Review). The Visual Magnitude System provides for a comprehensive scoring system, which rates the scenic impact of housing as viewed from the Lake. Basic traits of the proposed structure (such as color, percentage visibility of a structure’s perimeter, and articulation and surface texture of a structure’s facade) result in an objective color contrast score. A high score translates into more allowable visible square footage. Conversely, a low color contrast score results in less allowable visible square footage. In response to TRPA’s draft proposal of the scenic review system and before adoption of a final ordinance, various concerned citizens formed plaintiff, the Committee for Reasonable Regulation of Lake Tahoe (the “Committee”), in order 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.” (Compl., ¶ 2.) Unable to persuade TRPA to abandon or reconsider the scenic review system, the Committee filed a complaint (#2) on October 22, 2002. After TRPA took final action by adopting the Scenic Review Ordinance on November 20, 2002, the Committee filed a supplemental amendment (# 9) to the complaint on January 16, 2003. The complaint and the supplemental amendment asserted various claims for relief, including (1) that TRPA lacked authority to enact the Scenic Review Ordinance under TRPA’s Compact, (2) that TRPA lacked substantial evidence to justify the new scenic review system, (3) that the Compact required TRPA to prepare an environmental impact statement, (4) that TRPA effected a taking of the Committee’s members’ property, (5) that the Scenic Review Ordinance is arbitrary, vague, and ambiguous, and (6) that TRPA violated the First Amendment. TRPA filed a motion to dismiss (# 15) on March 31, 2003. The Committee opposed (# 29) the motion and TRPA replied (# 52). We held a hearing on February 19, 2004, and entered an oral order (# 77) dismissing several of plaintiffs claims. We now consider the motion to dismiss with respect to plaintiffs remaining claims, which we denoted as claims one through six above. I. GENERAL BACKGROUND: TRPA’s PURPOSE, STRUCTURE & THE SCENIC REVIEW ORDINANCE Before addressing the specifies of the Committee’s complaint and TRPA’s motion to dismiss, it is necessary to understand the need for regulation at Lake Tahoe, to review the history of regulation at Lake Tahoe, and to examine the role and structure of TRPA in such regulation. A. Lake Tahoe’s Beauty Leads to Regulatory Problems Lake Tahoe is an alpine lake located in the northern Sierra Nevada mountains. The lake is renowned for its beauty, including the clarity of its waters. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 34 F.Supp.2d 1226, 1230 (D.Nev.1999) (“Lake Tahoe ... is a remarkable alpine lake located in the northern Sierra Nevada mountains. The lake is almost indescribably beautiful.”); People ex rel. Younger v. County of El Dorado, 5 Cal.3d 480, 96 Cal.Rptr. 553, 487 P.2d 1193, 1194 (1971) (commenting that the Lake Tahoe Basin is “an area of unique and unsurpassed beauty.”); Kelly v. Tahoe Reg’l Planning Agency, 109 Nev. 638, 855 P.2d 1027, 1034 (1993) (agreeing with the district court’s conclusion that the Lake Tahoe Basin is “a national treasure”); see also Tahoe-Sierra Pres. Council, 34 F.Supp.2d at 1230 (quoting Mark Twain, Roughing It 169 (facsimile reprint of 1st ed., Hippocrene Books, n.d.) (1872) (“As [the lake] lay there with the shadows of the mountains brilliantly photographed upon its still surface I thought it must be the fairest picture the whole earth affords.”)). However, Lake Tahoe presents an interesting regulatory challenge because “the more Lake Tahoe comes to be appreciated for its beauty, the more that beauty is threatened.” Tahoe-Sierra Pres. Council, 34 F.Supp.2d at 1230. Further complicating matters, the Lake Tahoe Basin (the “Basin”) occupies 501 square miles and its jurisdiction is shared by the States of California and Nevada, five counties, several municipalities, and the Forest Service of the Federal Government. Tahoe-Sierra Pres. Council, Inc., 535 U.S. at 308, 122 S.Ct. 1465. Although several different entities have responsibilities in the Basin, regulation of the Basin as a whole presents regional problems and the need for a coordinated response to the problem is obvious. Tahoe-Sierra Pres. Council, 34 F.Supp.2d at 1232. B. 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 lake and created TRPA to “coordinate and regulate development in the Basin and to conserve its natural resources.” Tahoe-Sierra Pres. Council, 535 U.S. at 309, 122 S.Ct. 1465 (quoting Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 394, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979)). The two states, with the approval of Congress and the President, eventually adopted an extensive amendment to the Compact that became effective on December 19, 1980. Id. Currently, the amended bi-state Compact provides a unique regulatory framework that governs many aspects of the Basin. See Pub. Law No. 96-551, 94 Stat. 3233 (1980); N.R.S. § 277.200 et seq.; Cal. Gov’t Code § 66801 et seq. The Compact created the Tahoe Regional Planning Agency, the defendant in this lawsuit, and the Compact continues to dictate TRPA’s structure, responsibilities, powers, and other rules and requirements, as we will now discuss in greater detail. C. The Compact’s Findings and Declarations of Policy Article I of the Compact makes various findings and declarations of policy, many of which are pertinent to the resolution of this lawsuit. (Compact, Art. 1(a).) Among other things, the 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. Article I of the Compact gives context to the need for TRPA’s creation and brings a sense of purpose to TRPA, and a proper understanding of Article I is important to interpreting and administering the Compact. Specifically, Article I of the Compact states: ARTICLE I. FINDINGS AND DECLARATIONS OF POLICY (а) It is found and declared that: (1) The waters of Lake Tahoe and other resources of the region are threatened with deterioration or degeneration, which endangers the natural beauty and economic productivity of the region. (2) The public and private interests and investments in the region are substantial. (3) The region exhibits unique environmental and ecological values which are irreplaceable. (4) By virtue of the special conditions and circumstances of the region’s natural ecology, development pattern, population distributions and human needs, the region is experiencing problems of resource use and deficiencies of environmental control. (5) Increasing urbanization is threatening the ecological values of the region and threatening the public opportunities for use of the public lands. (б) Maintenance of the social and economic health of the region depends on maintaining the significant scenic, recreational, educational, scientific, natural public health values provided by the Lake Tahoe Basin. (7) There is a public interest in protecting, preserving and enhancing these values for the residents of the region and for visitors to the region. (8) Responsibilities for providing recreational and scientific opportunities, preserving scenic and natural areas, and safeguarding the public who live, work and play in or visit the region are divided among local governments, regional agencies, the States of California and Nevada, and the Federal Government. (9) In recognition of the public investment and multi-state and national significance of the recreational values, the Federal Government has an interest in the acquisition of recreational property and the management of resources in the region to preserve environmental and recreational values, and the Federal Government should assist the States in fulfilling their responsibilities. (10) In order to preserve the scenic beauty and outdoor recreational opportunities of the region, there is a need to insure an equilibrium between the region’s natural endowment and its man-made environment. (b) In order to enhance the efficiency and governmental effectiveness of the region, it is imperative that there be established a Tahoe Regional Planning Agency with the powers conferred by this compact including the power to establish environmental threshold carrying capacities and to adopt and enforce a regional plan and implementing ordinances which will achieve and maintain such capacities while providing opportunities for orderly growth and development consistent with such capacities. (c) The Tahoe Regional Planning Agency shall interpret and administer its plans, ordinances, rules and regulations in accordance with the provisions of this compact. (Compact, Art. I.) These findings and declarations of policy guide TRPA in interpreting and administering its plans. However, as described in our oral order (# 77), these findings and declarations of policy do not give rise to substantive obligations on the part of TRPA. D. Environmental Threshold Carrying Capacities The Compact defines an “[ejnvironmen-tal 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.” (Compact, Art. II(i) (emphasis added).) TRPA not only has the power to establish environmental threshold carrying capacities, (Id. at Art. 1(b)), but 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. (Id. at Art. V(b).) TRPA adopted three environmental threshold carrying capacities addressing scenic concerns (“scenic thresholds”) in 1982 and an additional scenic threshold in 1993. (Resolution 82-11, Def.’s Req. for Judicial Notice (“RJN”), Ex. 1 at A-10.; Ordinance 93-14, Def.’s RJN, Ex. 5.) Each scenic threshold addresses different elements of scenic quality, including: (SR-1) the quality of scenic resources from viewpoints along major roadways in the Basin and from the Lake towards shore; (SR-2) the quality of specific views of scenic features of the Basin’s natural landscape that can be seen from major roadways and the Lake; (SR-3) the “viewshed” from public recreation areas and certain bicycle trails; and (SR-4) the design standards and guidelines for the built environment to produce built environments compatible with the natural, scenic, and recreational values of the region. (Resolution 82-11, Def.’s RJN, Ex. 1 at A-10; Ordinance 93-14, Def.’s RJN, Ex. 5; Def.’s RJN, Ex. 7, Ch. 8 at 1-2.) SR-1, which was adopted in 1982, is of particular concern to this lawsuit because the Scenic Review Ordinance, which is primarily aimed at regulating views from the Lake towards shore, is designed to attain SR-1. (Resolution 82-11, Def.’s RJN, Ex. 1 at A-10.) SR-4, also adopted in 1982, is also of concern because it expresses the policy of TRPA to produce built environments — including elements of height, bulk, texture, form, materials, colors, lighting, and other design elements of new, remodeled and redeveloped buildings — compatible with the natural, scenic, and recreational values of the region. (Id.) E. The Regional Plan & Implementing Ordinances The Compact authorizes TRPA “to adopt and enforce a regional plan and implementing ordinances which will achieve” any adopted environmental threshold carrying capacities. (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).) However, if TRPA adopts new environmental threshold carrying capacities, including scenic thresholds, the Compact dictates that TRPA “shall amend the regional plan so that, at a minimum, the plan and all its elements, as implemented through agency ordinances, rules and regulations, achieves and maintains the adopted environmental threshold carrying capacities.” (Id. at Art. V(e).) TRPA adopted its current Regional Plan for the Basin in 1987. TRPA has also adopted implementing ordinances and rules and regulations (“Code of Ordinances” or “Code” and “Rules of Procedure”) in accordance with the Compact. (Def.’s RJN, Ex. 2.) F. 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. (Code § 32.8, Def.’s RJN, Ex. 2.) TRPA prepared and issued three such reports (in 1991,1996, and 2001), which are known as threshold evaluation reports (“Threshold Evaluation Reports”). (Def.’s RJN, Exs. 3, 4, 6.) According to the Code, the Threshold Evaluation 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.” (Code § 32.8.A(1), Def.’s RJN, Ex. 2.) TRPA’s Threshold Evaluation Reports include summaries, in the form of “environmental threshold compliance forms,” of information required by Code Section 32.8 for each threshold. {See, e.g., Def.’s RJN, Ex. 7, Ch. 8, 23-24.) Under the Code, the Threshold Evaluation Report 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. (Code § 32.8.A(2) — (5), Def.’s RJN, Ex. 2.) TRPA staff prepares the Threshold Evaluation Reports and submits them to the Governing Board (“Board”). The Board reviews the Threshold Evaluation Reports for completeness and issues the reports to the public through passing a Resolution. (Def.’s RJN, Exs. 3, 4, 6.) G. The Scenic Review Ordinance The Scenic Review Ordinance requires certain residential projects in shoreland or littoral parcels to meet certain criteria in order to obtain TRPA approval. The Scenic Review Ordinance 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 Scenic Review Ordinance encompasses three major components to achieve these different levels of review and present various options for residential design: Design Standards, Contrast Rating/Visual Magnitude Rating System, and different Levels of Review. (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. (Id.) TRPA had previously adopted design standards and the proposed amendments relate to color, setbacks, and glass. (Id.) We were unable to determine from the judicially noticed documents whether TRPA adopted the proposed amendments with respect to setbacks and glass, but the Scenic Review Ordinance does factor in setbacks and glass. (Code §§ 30.15.C(4)(a)(iii), 30.15.-C(5)(a)(ii), Def.’s RJN, Ex. 12; Visual Magnitude System, Def.’s RJN, Ex. 17, App. H-l.) It is apparent that TRPA adopted design standards relating to color. (Code § 30.6.A(3), Def.’s RJN, Ex. 12, Ch. 30 at 2.) 2. Contrast Rating/Visual Magnitude The contrast rating^visual magnitude rating procedure involves a complex rating of a proposed structure based on various factors — 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, which 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.) Factors that increase a project’s score include (1) various shades of dark/flat or medium dark surfaces, (2) projects with many visible planes composed of rock masonry, logs, boards, composite shingle, and shake roof, and (3) a low percentage of visible structure as seen from 300 feet offshore. (Id. at H-l to H-3.) Factors that decrease a project’s score include light/gloss (including glass) surfaces, flat box-like, warehouse-type structures with no visual breaks, and a high percentage of visible structure. (Id. at H-l to H-3.) A perfect score of 35 allows up to 3300 visible square feet. (Id. at H-3.) The lowest score of 3 allows for only 55 square feet. (Id-) 3. Levels of Review TRPA’s best argument in support of the Scenic Review Ordinance is its allowance of different levels of review. TRPA argues that this will allow for the streamlining of basic projects with little scenic impact, while allowing 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. (Code §§ 4.2.A, 30.15.C(1), Def.’s RJN, Ex. 12.) If a homeowner, seeks a permit for a more extensive project, there are three basic options for obtaining a permit in the shoreland. 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 specifics of the project. (Id. at § 30.15.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 visible facade square footage. (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 employing 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. (Id. at § 30.15.E(2).) The applicant can elect a panel until November 20, 2004, unless further extended by TRPA, and the panel may use other professionally accepted methods of evaluating scenic impacts. (Id.) II. PROCEDURAL BACKGROUND OF THIS LAWSUIT A. Resolutions 02-18 and 02-21 This lawsuit arises out of two TRPA Board actions, which the Committee claims are in violation of the Compact. The first Board action took place at TRPA’s July 24, 2002, Board Meeting. At this meeting, TRPA proposed and adopted Resolution 02-18 (“02-18”), which issued the 2001 Threshold Evaluation Report (2001 “Threshold Report” or “Report”). While the 2001 Threshold Report noted a general improvement in the scenic quality of commercial districts, the Report identified a dramatic increase in the pace of residential redevelopment and the resulting dramatic loss of scenic quality. (Def.’s RJN, Ex. 7, Ch. 8 at 12-13.) The 2001 Threshold Report listed several factors as matters of scenic concern for TRPA, including an increase in the scale and mass of residential structures, the proximity of structures to the lake, the increased visibility of structures, and the unauthorized removal of trees and other vegetation. (Id. at 12-14.) The 2001 Threshold Report also recommended the implementation of a new and, from the Committee’s perspective, unnecessary and unauthorized scenic review system. (Id. at 61-63 & App. 2.) On July 26, 2002, two days after the July 24, 2002, TRPA Board Meeting, various concerned members of the community formed the Committee. The Committee then entered into a tolling agreement with TRPA, whereby the statute of limitations in Article VI(j)(4) of the Compact would be tolled with respect to Resolution 02-18 until October 30, 2002. (Pl.’s RJN, attached to Pl.’s Oppo. (#29), Ex. 2.) On October 22, 2002, the Committee filed its complaint (# 2), which alleged eight claims for relief arising out of the July 24, 2002, TRPA Board Meeting, TRPA’s adoption of Resolution 02-18 and TRPA’s issuance of the 2001 Threshold Report. On November 20, 2002, after providing general notice to the public, TRPA conducted another Board Meeting and public hearing. (Def.’s RJN, Exs. 9-11.) At the Board Meeting, TRPA considered, amended, and adopted the Scenic Review Ordinance through the issuance of Resolution 02-21 (“02-21”). As amended and adopted, the Scenic Review Ordinance applies only to shoreland or littoral parcels— those within 300 feet of the high water mark of the Lake. (Def.’s RJN, Ex. 12, Ch. 2 at 1.) The Committee filed a supplemental amendment (# 9) to the complaint, which incorporated the claims for relief asserted against 02-18 and asserted the same claims for relief against 02-21. The supplemental amendment to the complaint also asserted claims that the Board’s actions in issuing both 02-18 and 02-21 violated the separation of powers doctrine, that the Scenic Review Ordinance and 02-18 are arbitrary, vague, and ambiguous, and that the Scenic Review Ordinance and 02-18 constitute violations of the First Amendment right to freedom of speech and expression and of political speech. B. The Hearing and Our Oral Decision We conducted a hearing on February 19, 2004, and issued an oral decision from the bench dismissing certain claims on February 20, 2004. In our oral decision, we granted defendant’s motion to dismiss plaintiffs first through eighth claims for relief for lack of standing because plaintiff failed to properly allege a concrete and particularized injury in fact arising from the issuance of 02-18. We also granted the motion to dismiss with respect to claim nine insofar as it addressed 02-18 because 02-18 merely issued the 2001 Threshold Report and did not cause an injury in fact to plaintiffs members. We also granted defendant’s motion to dismiss with respect to claim nine insofar as it alleged (1) Lack of Scientific Evidence and Technical Information, (2) Failure to Seek an Equilibrium Between Man and Nature, (3) Failure to Prepare an Economic Impact Study or Consider Feasibility, (4) Violation of the Administrative Procedure Act, (5) Separation of Powers violation, and (6) civil rights claims for violations of procedural due process, substantive due process, and equal protection. C. Plaintiffs Remaining Claims Plaintiffs remaining claims presented closer issues of law and involved a complicated interaction of the allegations of the complaint with the judicially noticed materials and facts. We concluded that these issues would be best explored in a more indepth analysis. Therefore, we now address plaintiffs remaining claims with respect to 02-21 and the Scenic Review Ordinance: (1) that TRPA lacked authority under the Compact to issue 02-21 and enact the Scenic Review Ordinance; (2) that TRPA did not make written findings on the basis of “substantial evidence;” (3) that TRPA was required to prepare an Environmental Impact Statement (“EIS”); (4) that the enactment of the Scenic Review Ordinance constitutes a taking of plaintiffs members property by TRPA under the Fifth and Fourteenth Amendments; (5) that the Scenic Review Ordinance is arbitrary, vague, and ambiguous; and (6) that the Scenic Review Ordinance violates the First Amendment right to freedom of speech and expression and of political speech. III. STANDARDS FOR MOTION TO DISMISS Dismissal for failure to state a claim is proper only if it is beyond doubt that plaintiff can prove no set of facts in support of his claim that would entitle plaintiff to relief. Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir.2000). The review is limited to the complaint, and all allegations of material fact are taken as true and viewed in the light most favorable to the non-moving party. In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Cir.1996). However, 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, 643 F.2d 618, 624 (9th Cir.1981). While review is limited to the contents of the complaint, if matters outside the pleadings are submitted, the motion to dismiss may be treated as one for summary judgment if the district court relies on the materials. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir.1996); Allarcom Pay Television, Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir.1995). However, a court may consider certain materials— documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice— without converting the motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003). On a motion to dismiss, “we presum[e] that general allegations embrace those specific facts that are necessary to support the claim.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)) (alteration in original). However, conclusory allegations and unwarranted inferences are insufficient to defeat a motion to dismiss. In re Stac Elecs., 89 F.3d at 1403. IV. ANALYSIS A. Claim One: TRPA Lacked Authority under the Compact The Committee claims that TRPA lacked authority under the Compact to enact the Scenic Review Ordinance. Specifically, the Committee alleges,(1) that TRPA’s justification for the Scenic Review Ordinance is a result of problems that TRPA itself has caused by approving projects in the past, (2) that land use decisions such as those relating to building and roofing colors and materials are within the sole jurisdiction of local governments and that TRPA failed to coordinate with the local governments, and (3) that TRPA has intruded upon the exclusive jurisdiction of local, state, and federal agencies responsible for fire and safety protection. (Compl., ¶¶ 21-27.) The Compact limits the scope of our judicial inquiry into TRPA’s authority to implement the Scenic Review Ordinance to questions of whether the act or decision was arbitrary, capricious or lacking in substantial evidentiary support or whether TRPA failed to proceed in a manner required by law. (Compact, Art. VI(j)(5).) The Committee’s lack of authority argument appears to be best characterized as an allegation that TRPA failed to proceed in a manner required by law. 1. Faulty Justification The Committee argues that “the ‘problems’ TRPA cites to justify its adoption of the [Scenic Review Ordinance] at Lake Tahoe are a result of its own inconsistent application of its Compact, TRPA’s Code of Ordinance, TRPA’s Rules of Procedure, regional plan, and its standard practices and procedures.” (Compl., ¶ 23.) Essentially, the Committee appears to be arguing that TRPA caused this problem and, therefore, does not have “lawful justification for implementing new extreme regulations.” (Id.) The Committee’s argument in this respect is itself faulty. First, the Compact mandates that TRPA “shall continuously review and maintain the regional plan.” (Compact, Art. V(c).) The Regional Plan includes a “conservation plan for the preservation, development, utilization, and management of the scenic and other natural resources within the basin.” (Id. at Art. V(c)(3).) Therefore, contrary to the Committee’s assertion that TRPA did not have authority to regulate the scenic quality in the Basin, TRPA is under an affirmative duty to maintain and review the regional plan, which includes the maintenance and preservation of scenic resources. (See id. at Art. V(c), Art. V(c)(3).) The fact that TRPA might have contributed to the deteriorating scenic quality through under-inclusive ordinances or by “acquiescing to powerful and influential individuals and groups” (Compl., § 23.) does not alter TRPA’s mandate under the Compact to continuously assess and preserve the scenic resources of the basin. (Compact, Art. V(c).) Second, the 2001 Threshold Report made specific findings addressing the need for a new scenic review system. While the 2001 Threshold Report supports the Committee’s allegations that TRPA has failed to properly enforce its pre-existing scenic review, the Report also notes that the “1991 and 1996 [Threshold] Evaluations identified Code deficiencies related to design criteria (height, setback, color, etc.) and use of unclear and inappropriate scenic assessment methodology as contributing to lack of threshold attainment.” (Def.’s RJN, Ex. 7, Ch. 8 at 16; See Def.’s RJN, Ex. 16, at 123 (“TRPA sampling estimates that 10-15% of the problem is insufficient enforcement” of existing scenic conditions of approval).) TRPA also found that, at the time, the current qualitative approach “resulted] in subjectivity and many hours spent debating or compromising on scenic mitigation measures.” (Def.’s RJN, Ex. 16, at 75.) Therefore, it is apparent that TRPA noted deficiencies in both its methodology and ordinances, and the Scenic Review Ordinance represents an attempt to rectify those problems. (See Def.’s Resp. (# 74), Ex. A at 5 (“[I]t is appropriate that [TRPA] apply the precautionary principle in eliminating/replacing procedures which have permitted further decline, and instituting firm actions to improve existing conditions.”).) Despite the fact that TRPA’s failures might have contributed to the degradation in scenic quality, it was under a duty imposed by the Compact to correct these problems by assessing the Regional Plan and adopting new ordinances to seek attainment of the thresholds. Plaintiffs theory that TRPA is precluded from regulating a subject area because its prior regulations failed would divest TRPA of most of its authority as, according to the 2001 Threshold Report, TRPA is out of attainment on 70 percent of its thresholds (25 out of 36). (Def.’s RJN, Ex. 7 at xvii.) Imposing these adverse consequences on agencies for past failures would greatly inhibit sound agency decision making because agencies might refrain from taking action if such action could result in a loss of authority in a particular subject matter. The agency might not undertake projects with a less than 100% probability of success even if the expected net benefit was positive. Furthermore, this would lead to the absurd result that the areas in most need of agency attention — the areas which are in non-compliance — are the areas in which the agency is divested of authority to regulate. Therefore, it is clear that TRPA’s history of failure in this area does not divest it of regulatory authority and defendant’s motion to dismiss should be granted with respect to this claim. 2. Land Use Decisions are Local in Nature The Committee also argues that “[l]and use decisions such as those relating to building and roofing colors and materials are within the sole jurisdiction of local government at Lake Tahoe.” (Compl., ¶ 24.) As outlined above, the Compact mandates that TRPA shall develop a regional plan which shall include a “conservation plan for the preservation, development, utilization, and management of the scenic and other natural resources within the basin.” (Compact, Art. V(c)(3) (emphasis added).) In fact, the Compact grants TRPA the power to establish “environmental threshold carrying capacities,” which specifically includes an “environmental standard necessary to maintain a significant scenic” value of the region. (Id. at Art. 1(b), II(i) (emphasis added).) The Compact’s findings support the interpretation that TRPA has the authority to maintain the “significant scenic ” values provided by the Basin. (Id. at Art. 1(a)(6) (emphasis added).) The fact that the Compact specifically mentions scenic resources and values, and actually mandates that TRPA protect such scenic resources, suggests that such a problem does in fact represent a regional problem. See People ex rel. Younger v. County of El Dorado, 5 Cal.3d 480, 96 Cal.Rptr. 553, 487 P.2d 1193, 1201 (1971) (“Indeed, the fact that the Compact is the product of the cooperative efforts and mutual agreement of two states is impressive proof that its subject matter and objectives are of regional rather than local concern.”). Furthermore, the California Supreme Court noted in Younger that land-use planning and environmental control often present problems of regional, statewide, national, or even world-wide concern. Id. at 1204 n. 20. Therefore, the Scenic Review Ordinance is within TRPA’s authority under the Compact because it addresses a problem of regional concern: the scenic quality of littoral and shoreland properties around the entire Lake. (See Compact, Art. VI(a) (“Whenever possible ... the ordinances, rules, regulations, and policies shall be confined to matters which are general and regional in application .... ”).) The Scenic Review Ordinance is general and regional in nature as it applies to all littoral and shoreland properties in the Basin. Furthermore, local jurisdictions would likely be unable to coordinate this extensive of a regulatory scheme in order to mitigate the scenic impact of residential housing along the lakefront area. We note that local jurisdictions retain jurisdiction over land use decisions, but their power is not absolute. Local jurisdictions have the power to “adopt and enforce an equal or higher requirement applicable to the same subject of regulation in its territory.” (Id. at Art. VI(a).) Therefore, plaintiffs argument that local jurisdictions retain sole jurisdiction over scenic quality matters, such as land use, is without merit. The Compact specifies that in formulating and implementing the regional plan TRPA “shall seek the cooperation and consider the recommendations of’ local government, State and Federal agencies, other educational institutions and research organizations. (Compact, Art. V(i); see also SR-4, Def.’s RJN, Ex. 2 at A-10 (“It shall be the policy of the TRPA Governing Board in development of the Regional Plan, in cooperation with local jurisdictions, to insure the height, bulk, texture, form, materials, colors ... and other design elements of new, remodeled and redeveloped buildings be compatible with the natural, scenic, and recreational values of the region.”) (emphasis added).) The Committee’s complaint does not allege that TRPA failed to coordinate, cooperate, or consider the recommendations of local governments. The Committee’s complaint simply alleges that TRPA is usurping local authority and that the Compact requires TRPA to “coordinate with local government.” Although the complaint alleges that TRPA had a duty to coordinate, the complaint does not allege that TRPA actually failed to comply with this aspect of the Compact. Furthermore, even if the Committee is arguing that TRPA had to coordinate with local government, such a claim is foreclosed by the judicially noticed record. Representatives of city and county governments sit on TRPA’s Advisory Planning Commission (Compact, Art. 111(h)) and its Governing Board (Id. at Art. 111(a)), both of which participated in hearings. (See, Def.’s RJN, Ex. 15 at 116 (noting Advisory Planning Commission’s reception of public comments and its recommendation to approve the Scenic Review Ordinance).) Six of the fifteen Governing Board members are representatives from local cities (2) and counties (4). (Compact, Art. 111(a).) In short, even if the Committee’s complaint adequately stated noncompliance with the Compact in this respect, there is substantial evidence that TRPA cooperated and considered the recommendations of local governments. 3. Intrusion Upon the Jurisdiction of Fire Protection and Safety The Committee also alleges that the Scenic Review Ordinance’s requirements for landscaping and screening will create a fire hazard, thereby intruding upon the jurisdiction of local, state, and federal agencies responsible for fire protection and safety. As previously discussed, the Compact grants TRPA the authority to enact ordinances regulating land use decisions that are of regional concern. This authority includes decisions relating to landscaping and screening. The Scenic Review Ordinance mitigates any possible fire danger by including a clause that “[t]he applicant shall not submit vegetative screening inconsistent with local fire protection standards.” (Code § 30.15.D(3), Def.’s RJN, Ex. 2.) The Scenic Review Ordinance does not interfere with local fire protection standards because it includes a clause that specifically incorporates local fire standards. Land use decisions such as those regulated by the Scenic Review Ordinance are within the jurisdiction of TRPA. Even if the jurisdiction of TRPA and other agencies responsible for fire and safety protection interact or are co-extensive, this does not deprive TRPA jurisdiction or authority to implement the Scenic Review Ordinance, especially since the ordinance specifically incorporates local fire protection standards. Therefore, plaintiffs claim that TRPA exceeded its authority by regulating areas that are within the exclusive jurisdiction of fire safety and protection agencies must be dismissed. The Committee also argues that TRPA failed to seek comments from local, state, and federal agencies responsible for fire protection and safety. We construe this as an assertion that TRPA failed to “proceed in a manner required by law.” (See Compact, Art. VI(j)(5).) Contrary to the assertions of the complaint, it is unclear that TRPA is under a duty to consult with local, state and federal fire protection and safety agencies because we could find no such duty in the Code. (But see id. at Art. V(I) (“In formulating and implementing the regional plan, [TRPA] shall seek the cooperation and consider the recommendations of counties and cities and other agencies of local government, of State and Federal agencies .... ”).) To the extent that TRPA is under such a duty, it is apparent from the judicially noticed record that TRPA did in fact consult with local fire agencies. (Def.’s RJN, Ex. 13, Attach. F at 225.) Furthermore, TRPA did consider fire danger in its Initial Environmental Checklist, albeit in, a cursory fashion, by marking a box that the project would not result in an unplanned effect on fire protection. (See Environmental Checklist Form, Def.’s RJN, Ex. 13 at 11.) Notwithstanding plaintiffs allegation in the complaint, it appears from the judicially noticed record that TRPA did consult and seek comments from local, state and federal agencies responsible for fire protection and safety and this is supported by evidence in the judicially noticed record. B. Claim Two: TRPA’s Decisions Were Arbitrary, Capricious, and Lacked “Substantial Evidentiary” Support The Committee alleges various flaws or gaps in TRPA’s evidence as justification for implementing the Scenic Review Ordinance, including the lack of scientific or technical information. However, as addressed below, the Compact permits challenges to TRPA’s actions that lack “substantial evidentiary” support. Therefore, we now address whether TRPA based its decision on the basis of substantial evidence. 1. TRPA’s duty under its Compact and Code Under the Compact, TRPA is required to make written findings on the basis of “substantial evidence in the record that the project is consistent with applicable plans, ordinances, regulations, and standards of Federal and State agencies relating to the protection, maintenance and enhancement of environmental quality in the region.” (Compact, Art. VI(b) (emphasis added).) Although Article VI(b) of the Compact applied until TRPA adopted ordinances prescribing specific written findings that the agency is required to make prior to approving a project in the region, TRPA also adopted the “substantial evidence” standard in its ordinances. (Code § 6.2.A, Def.’s RJN, Ex. 2 at Ch. 6 (“All required findings shall be in writing and shall be supported by substantial evidence in the record of review.”) (emphasis added); Compact, Art. V(g).) Furthermore, under Article VI(j)(5), the scope of judicial review of legislative acts or decisions of TRPA extends only to questions of whether the act or decision was “arbitrary, capricious or lacking substantial evidentiary support or whether the agency has failed to proceed in a manner required by law.” (Compact, Art. VI(j)(5) (emphasis added).) TRPA adopted ordinances, located in Chapter 6 of the Code, that outline the findings required before taking certain actions. (Def.’s RJN, Ex. 2, Ch. 6 at 1.) The Code requires that all findings “shall be in writing and shall be supported by substantial evidence in the record of review.” (Code § 6.2.A, Def.’s RJN, Ex. 2, Ch. 6 at 1 (emphasis added).) The required findings “shall be accompanied by a brief statement of the facts and rationales upon which they are based.” (Id. at § 6.2.B.) Before approving any amendment or adoption of the Code, Rules, or other plans which implement the Regional Plan, Code Section 6.5 mandates that TRPA must find “that the Regional Plan and all of its elements, as implemented through the Code, Rules and other TRPA plans and programs, as amended, achieves and maintains the thresholds.” (Id. at § 6.5.) With respect to the Regional Plan, Code Section 6.4 likewise requires that TRPA must find that the Regional Plan, as amended, achieves and maintains the thresholds. Section 6.3 of the Code specifies the “Threshold-Related Findings” that TRPA must make in order to satisfy its obligation under Code § 6.5.Code Section 6.3.A details three particular findings that TRPA must make in order to approve any amendment or adoption of the Code, Rules or other TRPA plans and programs which implement the Regional Plan: (1) The project is consistent with, and will not adversely affect implementation of the Regional Plan, including all applicable Goals and Policies, plan area statements and maps, the Code and other TRPA plans and programs, [sic] (2) The project will not cause the environmental threshold carrying capacities thresholds to be exceeded; and (3) Wherever federal, state or local air and water quality standards applicable for the region, whichever are strictest, must be attained and maintained pursuant to Article V(d) of the Tahoe Regional Planning Compact, the project meets or exceeds such standards. (Id. at § 6.3.A.) 2. The meaning of “substantial evidence” The deferential “substantial evidence” standard of review is common in judicial review of agency decisions. Aegerter v. City of Delafield, 174 F.3d 886, 889 (7th Cir.1999). Courts have construed substantial evidence to mean “less than a preponderance, but more than a scintilla of evidence.” Cellular Tele. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir.1999). In making this determination, a court views the entire record to see if it contains “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Universal Camera v. Nat. Labor Relations Bd., 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). Under the Telecommunications Act, substantial evidence may take the form of aesthetic information and judgment as long as it is apparent that aesthetic judgment is not a pretext for a particular decision. Sprint Spectrum L.P. v. Bd. of Zoning Appeals of the Town, of Brookhaven, 244 F.Supp.2d 108, 114 (E.D.N.Y.2003) (“[Cjourts need not look far beyond a local board’s citing of aesthetics to find a valid basis for a local zoning decision (quoting Cellular Tele. Co., 166 F.3d at 495) (internal brackets omitted). Likewise, under the Compact, we find that aesthetic information and judgment may constitute “substantial evidence.” 3. The Scenic Review Ordinance is based on substantial evidence It is apparent from the judicially noticed record that TRPA made the findings required by the Code and the Compact. (See October 16, 2002 Memo — Agenda Item IX.A, Defi’s RJN, Ex. 15 at 124-26 (citing 2001 Threshold Report, Def.’s RJN, Ex. 7); see also November 12, 2002 Memo — Agenda Item VII.B, Def.’s RJN, Ex. 16 at 75-77.) Furthermore, it is clear from the judicially noticed record that such findings were based on substantial evidence because the findings contain relevant evidence that a reasonable mind might accept as adequate to support their conclusion. Of primary significance, the 2001 Threshold Report extensively documented the problem — the ineffectiveness of the previous scenic measures and the negative trend in the decline in scenic quality — and the need for a different approach to scenic quality — the Scenic Review Ordinance. Therefore, under this deferential standard of review, it is clear that, although the Committee does not agree with TRPA’s approach, TRPA made the required findings under the Compact and the Code and TRPA’s decision was based on the consideration of substantial evidence. (See Def.’s RJN, Ex. 15, Agenda Item IX.A, at 124-25 (making the required findings and citing the 2001 Threshold Report as support for such findings).) The 2001 Threshold Report provides the “substantial evidence” by carefully detailing “an alarming negative trend” in the increase in visibility of residential structures, particularly in the shoreline units. (Def.’s RJN, Ex. 7, Ch. 8 at 14.) The 2001 Threshold Report describes specific features of the new and remodeled projects that are contributing to increased visibility and associated loss of scenic quality, including an increase in scale and mass of residential structures, reduction in structure setback, architectural features that increase visibility, and unauthorized removal of trees and vegetation. (Id.) The 2001 Threshold Report also identifies that the degradation of the scenic quality resulted from inadequate scenic assessment and TRPA permit conditions. (Id.) The 2001 Threshold Report also recognizes that the “1991 and 1996 Threshold Evaluations identified Code deficiencies related to design criteria (height, setback, color, etc.) and [the] use of unclear and inappropriate scenic assessment methodology as contributing to the lack of threshold attainment.” (Id.) The 2001 Threshold Report represents the final straw after ten year’s of fact finding, assessment, and the realization of gradual degradation. Therefore, we must dismiss plaintiffs claim that TRPA did not base its decision on substantial evidence because the adoption of the Scenic Review Ordinance is based on more than a mere scintilla of evidence of a negative visual impact and a reasonable person would accept the 2001 Threshold Report as sufficient evidence to support the conclusion that the Scenic Review Ordinance was necessary to achieve the thresholds. See Sprint Spectrum, 244 F.Supp.2d at 114 (“[Cjourts can find that aesthetics qualify as a permissible ground for denial of a permit only if there was more tha[n] a mere scintilla of evidence before the local board on the negative visual impact.”) (internal quotations, ellipsis and brackets omitted). C. Claim Three: TRPA Failed to Prepare an EIS The Committee also alleges that the Compact requires TRPA to prepare an Environmental Impact Statement (“EIS”) because the Scenic Review Ordinance will have a significant effect on the environment. 1. Requirements of an EIS under TRPA’s Compact and Code 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.” (Compact, Art. VII(a)(2).) However, the Code requires TRPA to use either an initial environmental checklist (“IEC”) or an environmental assessment (“EA”) to determine if the project has a significant effect on the environment. (Code § 5.2, Def.’s RJN, Ex. 2, Ch. 5 at 1.) Based on the information submitted in the IEC and other information known to TRPA, under Code Section 5.2.B(1), TRPA can make a finding that the proposed project could not have a significant effect on the environment and can prepare a finding of no significant effect. (Id. at § 5.2.B(I).) TRPA prepared an IEC and determined that there was no significant environmental impact. (Def.’s RJN, Ex. 13.) Therefore, the Code and the Compact did not require TRPA to prepare an EIS. (Code § 5.6, Def.’s RJN, Ex. 2.) The Committee’s complaint does not allege facts, even if taken as true, that an EIS was required. Most of the allegations in the complaint related to the need to prepare an EIS involve conclusory allegations (“TRPA’s actions will result in a direct physical change to the environment”) or the requirements of the EIS if one was prepared (“TRPA failed to consider alternatives to the proposed project”). (Compl., ¶ 40(b) & (e).) Although the judicially noticed documents are not considered for the truth of the facts stated therein, plaintiff has failed to allege facts that would necessitate the preparation of an EIS or sufficient to raise a substantial question as to whether the project may cause a significant degradation of some human environmental factor. 2. Judicial review under the NEPA The Ninth Circuit recently reaffirmed that, in the context of the National Environmental Protection Act (“NEPA”), “[a]n EIS must be prepared if substantial questions are raised as to whether a project ... may cause significant degradation of some human environmental factor.” Ocean Advocates v. United States Army Corps of Eng’rs, 361 F.3d 1108, 1124 (9th Cir.2004) (quoting Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1149 (9th Cir.1998)) (internal quotations omitted). A plaintiff need not show that significant environmental effects will in fact occur because “raising substantial questions whether a project may have a significant effect” is adequate to state a claim that an EIS was required. Id. (quoting Idaho Sporting, 137 F.3d at 1150) (internal quotations omitted). However, it is unclear whether the standards for preparing an EIS under the NEPA apply to TRPA’s interpretation of the Compact and its Code. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (holding that a court “may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.”) 3. Was an EIS required in this case? TRPA’s finding of no significant environmental impact was not arbitrary or capricious and is supported by substantial evidence. The Committee’s complaint does not raise a substantial question as to whether the Scenic Review Ordinance may cause significant degradation of an environmental factor. Even if “environmental impact” included significant effects on the man-made environment, TRPA likely had substantial evidence to find that no significant environmental impact would occur. (See Def.’s RJN, Ex. 16, Attach. E, Letter from Johnson-Perkins & Associates (discussing the limited effect of ordinance on man-made environment, including property values and views of Lake, on most projects. Only a very small percentage of properties undergo substantial reconstruction or expansion and impact on overall value of lakefront properties should be relatively minor).) Furthermore, TRPA followed its procedure and its interpretation of its Compact and ordinances in preparing an IEC, and its finding of no significant environmental effect is based on more than a scintilla of evidence. Therefore, we must dismiss the plaintiffs claim in this respect. D. Claim Four: TRPA Effected a Taking of Plaintiffs Property under Penn Central The Committee’s fourth claim for relief asserts that the mere enactment of the Scenic Review Ordinance effects a taking of its member’s property rights. 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 applicable to the States through the Fourteenth Amendment. Dolan v. City of Tigard, 512 U.S. 374, 383, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). Although TRPA is not, technically speaking, a state or subdivision of a state, TRPA is clearly liable for damages for violations of the Takings Clause. Tahoe-Sierra Pres. Council, 34 F.Supp.2d at 1238. 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 the public as a whole.” Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 123, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)) (internal quotation marks and brackets omitted). 2.Regulatory takings The government can violate the Takings Clause either by direct government appropriation of property without just compensation as explicitly detailed in the Fifth Amendment, or by government regulation — a- regulatory taking — which is not referenced in the text of the Fifth Amendment and involves relatively recent judicial developments. See Tahoe-Sierra Pres. Council, 535 U.S. at 321-22, 122 S.Ct. 1465; see also Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922) (Holmes, J.) (giving birth to the concept that government regulation can constitute a taking). “[A] regulatory taking occurs when the value or usefulness of private property is diminished by a regulatory action that does not involve a physical occupation of the property.” Hotel & Motel Ass’n of Oakland v. City of Oakland, 344 F.3d 959, 965 (9th Cir.2003) (quoting Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 684 (9th Cir.1993)). The Supreme Court’s jurisprudence involving regulatory takings is characterized by “essentially ad hoc, factual inquiries designed to allow careful examination and weighing of all the relevant circumstances.” Tahoe-Sierra Pres. Council, 535 U.S. at 322, 122 S.Ct. 1465 (citations and internal quotations omitted). While property may be regulated to a certain extent, “if regulation goes too far it will be recognized as a taking.” Id. at 326, 122 S.Ct. 1465 (quoting Pennsylvania Coal Co., 260 U.S. at 415, 43 S.Ct. 158 (Holmes, J.)). A land use regulation goes too far and constitutes a taking if: (1) the regulation denies a landowner all economically viable use of the property, or (2) the regulation does not substantially advance a legitimate government interest. Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). 3. Facial regulatory takings challenges A facial takings challenge involves a claim 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. Hotel & Motel Ass’n, 344 F.3d at 965; see Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 494-95, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987). Since the Committee is attacking the Scenic Review Ordinance before its implementation and has not alleged that TRPA has denied permits under the Ordinance, the Committee is raising a facial challenge. As facial challenges are more difficult to assert, the Committee faces an “uphill battle.” Tahoe-Sierra Pres. Council, 535 U.S. at 320, 122 S.Ct. 1465 (quoting Keystone, 480 U.S. at 495, 107 S.Ct. 1232). 4. Since plaintiff did not allege a total loss of value, Penn Central provides the proper analytical framework Under the first Agins test, a government regulation constitutes a taking if it denies an owner economically viable use of her land. Agins, 447 U.S. at 260, 100 S.Ct. 2138. The denial of all economically viable use is an “extraordinary circumstance” and a “relatively rare situation! ]” that upsets the “usual assumption that the legislature is simply ‘adjusting the benefits and burdens of economic life’ ” and makes the functional basis for the rule — that the Government could hardly pay for every regulation that diminishes property values — inapplicable. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1017-18, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (quoting Penn Central Transp., 438 U.S. at 124, 98 S.Ct. 2646). Multiple factors are relevant in the analysis of regulatory takings claims, and the court should focus on the “parcel as a whole” in analyzing regulatory takings. Tahoe-Sierra Pres. Council, 535 U.S. at 327, 331, 122 S.Ct. 1465. In this case, the Committee’s complaint does not allege that the Scenic Review Ordinance will deprive its members of all economically viable use of their land or constitutes a total taking of the value of the entire parcel as a whole. Although the complaint alleges $100 million in lost property value, there is no indication that this constitutes a “total loss” in value of the “parcel as a whole.” In fact, the complaint arrived at the $100 million in lost value by applying a 50% reduction for reduced view. (Compl., ¶ 52.) This is insufficient to allege a total taking of the value of the entire parcel of land. In accordance with the Court’s wording in Lucas that the denial of all economically viable use is a “relatively rare situation” and is an “extraordinary circumstance,” the Court later explained that “anything less than a ‘complete elimination of value,’ or a ‘total loss,’ the [Lucas Court acknowledged, would require the kind of analy