CAL. TAHOE REGIONAL PLANNING AGCY. v. NSC, INC.

• Decision Date: 05 November 1980
• Docket Number: No. CIV-R-78-180-ECR.,CIV-R-78-180-ECR.
• Citation: 504 F. Supp. 769
• Parties: CALIFORNIA TAHOE REGIONAL PLANNING AGENCY et al., Plaintiffs, v. N.S.C., INC., et al., Defendants.
• Court: U.S. District Court — District of Nevada

504 F. Supp. 769

CALIFORNIA TAHOE REGIONAL PLANNING AGENCY et al., Plaintiffs, v. N.S.C., INC., et al., Defendants.

No. CIV-R-78-180-ECR.

United States District Court, D. Nevada.

November 5, 1980.

Evelle J. Younger, Atty. Gen., Kenneth R. Williams, E. Robert Wright, Deputy Attys. Gen., Sacramento, Cal., for plaintiffs.

Shaw, Heaton & Doescher by Gary A. Owen, Carson City, Nev., for TRPA and individuals thereof.

Gregg W. Zive, Reno, Nev., for defendant N.S.C., Inc.

Gordon DePaoli, Reno, Nev., for defendant North Shore Tahoe Properties.

ORDER

EDWARD C. REED, Jr., District Judge.

This matter came on for hearing on October 14, 1980, on the motion of the plaintiffs for a temporary restraining order to restrain the defendants from continuing construction on additions to the Tahoe Mariner hotel and casino (formerly the North Shore Club), located at Crystal Bay, Nevada. Kenneth R. Williams, Deputy Attorney General for the State of California, represented the plaintiffs; Gary Owen, Esq., represented defendants Tahoe Regional Planning Agency and the individual members of that Agency; Gregg W. Zive, Esq., represented defendant N.S.C., Inc.; Gordon H. DePaoli, Esq., represented North Shore-Tahoe Properties.

The contention is that the Tahoe Regional Planning Agency (hereinafter TRPA) violated its own Land Use Ordinance (hereinafter LUO) when it approved the construction project. Essentially, the plaintiffs maintain that sections applicable to land coverage, limitations on height, and administrative findings were misinterpreted and misapplied. Generally, questions concerning the interpretation and application of TRPA ordinances do present federal questions under 28 U.S.C. § 1331(a); although state courts might have concurrent jurisdiction, where interstate conflicts may arise that could substantially affect the effective functioning of the Tahoe Regional Planning Compact between California and Nevada, a federal court has jurisdiction. League to Save Lake Tahoe v. B.J.K. Corp., 547 F.2d 1072 (9th Cir. 1976); California Tahoe Regional Planning Agcy. v. Jennings, 594 F.2d 181 (9th Cir. 1979). Such is the case here.

The project approval was by a dual majority; that is, a majority of the TRPA members from each state voted favorably. This constitutes full exercise of TRPA's power of de novo review of decisions of the local (in this case, Washoe County, Nevada) permit-issuing agency. Id.; People of St. of Cal. ex rel. Younger v. Tahoe Reg. P. Ag., 516 F.2d 215 (9th Cir. 1975). As a result, the proceedings before the County authorities (Washoe County approved the project) are immunized from review by this Court. See California Tahoe Regional Planning Agcy. v. Jennings, supra. However, the complete administrative record (hereinafter Ad. Rec.) before TRPA has been reviewed by the undersigned.

Land Coverage

The plaintiffs contend that the land coverage limitations contained in LUO have been violated. "Land coverage" refers to structures, improvements or coverings that are so impervious as to prevent more than 25% of normal precipitation from directly reaching the underlying land; it includes lands used as parking lots to such an extent the soil has become so compacted that less than 75% of precipitation passes through. LUO 3.00 (definition of "Land Coverage"). A sizable portion (about 35,000 square feet) of the land hereinvolved was merely graded, and has been used for automobile parking without further improvement. It is located mostly in a General Forest land classification area; such land is considered environmentally fragile. The plaintiffs argue that TRPA never really decided whether the graded area had been used for parking prior to the effective date of LUO (April 11, 1972), so as to be grandfathered in as a nonconforming use. See LUO 9.11.

Aerial photos taken before April 1972, as well as other oral and written evidence, were considered by TRPA in resolving this issue. Ad. Rec. B-18, 57, 58, 59, 60, 62, 63, 64, 67, 68, 69, 73, 78, 81, 96, 98, 99, 100, 101 and 114. It decided that less than the entire amount of graded area claimed as non-conforming had been used for parking prior to the effective date of LUO. Therefore, the defendants were required to demolish an existing 29-unit motel and convert that site to landscaping in order to make up the difference. Ad. Rec. A-23 and A-24.

In order to meet LUO requirements, the defendants agreed to convert to landscaping some 60,000 square feet of existing covered land, to compensate for approximately 50,000 square feet of new coverage created by the improvements under the project. Ad. Rec. A-46 and A-87. The replacement of nonconforming land coverage ordinarily must be at the same location. LUO 9.21(3)(c). That is, if a preexisting (prior to the effective date of the LUO) nonconforming improvement is to be replaced with a new improvement, the usual rule is that the replacement must be at the same site. Nevertheless, an alternative site on the same parcel may be used for the replacement improvement where (a) the applicant demonstrates beyond any reasonable doubt that relocation to the alternative site will protect and enhance the natural environment compared to replacement on the original site (LUO 9.21(3)(c)(i)), and (b) the total nonconforming land coverage on the parcel will be reduced by at least ten percent (LUO 9.21(3)(c)(ii)).

The record reveals that the project should stabilize the area by correcting existing severe erosion problems. (Ad. Rec. A-12). The change from a large open area for parking to a compact two-story parking structure, plus extensive landscaping, would be the prime means of correction. In addition, slope stabilization would be accomplished by using fill to lessen the steepness of the existing embankment and placing gabions in the place of worst erosion, and stormwater drainage would be improved by the use of facilities that cause the stormwater to percolate into the soil rather than run into Lake Tahoe. Ad. Rec. A-24 and A-29. In addition, the bulk of the preexisting coverage is in a fragile area of land capability. It would be landscaped. The new coverage under the project would be in a more durable location. Ad. Rec. A-23.

Thus, there is substantial evidence in the record to show that the "replacement of nonconforming land coverage" requirements of LUO 9.21(e)(c) have been met. Nevertheless, the plaintiffs contend that LUO 7.83, which limits land coverage to fifty percent in cases of non-residential use, and LUO 8.22(2), which forbids the transfer of land coverage from one land capability district to another, are both being violated by the approval of the project. The defendants respond that said ordinance sections are applicable only to virgin areas (parcels without existing nonconforming land coverage). LUO 9.21, they point out, permits the continuance and replacement of nonconforming land coverage where certain requirements are met. As discussed above, those requirements have been met as to the defendants' project.

Both the plaintiffs' and the defendants' arguments as to the proper interpretation and application of the land coverage ordinance sections were presented and considered by TRPA. Ad. Rec. B-18, B-64, B-65, B-98 and B-132. The approval of the project indicates that TRPA construes those sections in concurrence with the defendants' position. In the absence of compelling indications that such construction is wrong, the Court should give great deference to it, for TRPA is the agency charged with the administration of the LUO. People of St. of Cal. ex rel. Younger v. Tahoe Reg. P. Ag., 516 F.2d 215 (9th Cir. 1975); see also Montana Power Co. v. Environmental Protection Agcy., 608 F.2d 334 (9th Cir. 1979). No such compelling indications exist here.

Limitations on Height

The plaintiffs also contend that LUO 7.13, controlling building height, has been violated as to the new hotel building. Said ordinance section limits the height of buildings to forty feet in a tourist commercial use district, such as is hereinvolved, unless the permit-issuing authority determines that certain safety, aesthetic and environmental considerations have been fulfilled. However, the section also declares: "Only those administrative permits that allow a building or other structure of a height of 45 feet or more shall be subject to Agency (TRPA) review ...." "Building height" is defined in 7.13 as the vertical distance from the grade to the roof. "Grade" is defined as the average of the "finished ground level" at the center of all walls of the building.

The plaintiffs say that the real height of the hotel building will be in excess of fifty feet, but that the defendants are unlawfully evading the meaning of section 7.13 by excavating so that one or one and one-half stories will be located under their finished ground level. That subterranean portion of the building then is not included in "building height". As a result of the excavation, combined with the use of fill material around the perimeter of the building, the defendants technically end up with a building whose height is under 45 feet. Therefore, the aforementioned safety, aesthetic and environmental considerations may be ignored, as the TRPA has no review power over Washoe County's approval of the project insofar as building height is concerned. The plaintiffs assert that LUO 7.13 is aimed at population density, as well as the other considerations; i. e., a larger building will attract more traffic. They allege it was never intended that said section could be circumvented by excavating and using fill material.

The TRPA staff summary shows a building height of 44.7 feet. Ad. Rec. A-24. An affidavit of the project's architect, William Schuppel, reveals that the roof elevation since has been reduced by four feet. Said affidavit is attached as an exhibit to a Memorandum of Points and Authorities in Opposition to Motion for Temporary Restraining Order, filed October 14, 1980. Therefore, the present...