California Tahoe Regional Planning Agency v. Jennings

• Decision Date: 15 February 1979
• Docket Number: 78-1224,Nos. 78-1160,s. 78-1160
• Citation: 594 F.2d 181
• Parties: 9 Envtl. L. Rep. 20,131 CALIFORNIA TAHOE REGIONAL PLANNING AGENCY and People of the State of California, Plaintiffs-Appellants, v. Ted JENNINGS, Oliver Kahle, Harvey's Wagon Wheel, Inc., Park Cattle Co., and County of Douglas, Defendants-Appellees. LEAGUE TO SAVE LAKE TAHOE, and the Sierra Club, Plaintiffs-Appellants, v. Ted JENNINGS, Oliver Kahle, Harvey's Wagon Wheel, Inc., Park Cattle Co., Del Webb International, Inc., County of Douglas, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 181

594 F.2d 181

9 Envtl. L. Rep. 20,131

CALIFORNIA TAHOE REGIONAL PLANNING AGENCY and People of the

State of California, Plaintiffs-Appellants, v. Ted JENNINGS, Oliver Kahle, Harvey's Wagon Wheel, Inc., Park

Cattle Co., and County of Douglas, Defendants-Appellees.

LEAGUE TO SAVE LAKE TAHOE, and the Sierra Club, Plaintiffs-Appellants, v. Ted JENNINGS, Oliver Kahle, Harvey's Wagon Wheel, Inc., Park

Cattle Co., Del Webb International, Inc., County

of Douglas, Defendants-Appellees.

Nos. 78-1160, 78-1224.

United States Court of Appeals, Ninth Circuit.

Feb. 15, 1979.

Rehearing Denied April 16, 1979.

E. Robert Wright, Sacramento, Cal. (argued), Charles Biblowit, Washington, D. C. (argued), Sanford Sagalkin, Dept. of Justice, Washington, D. C., for plaintiffs-appellants.

F. R. Breen (argued), Richard W. Blakey, Reno, Nev., Steven D. McMorris, Minden, Nev., John Frankovich (argued), Peter D. Laxalt (argued), Gordon H. DePaoli (argued), Reno, Nev., for defendants-appellees.

Appeal from the United States District Court for the District of Nevada.

Before MERRILL and SNEED, Circuit Judges, and LINDBERG, ^* District Judge.

SNEED, Circuit Judge:

Appellants appeal from the district court's grant of appellees' motion to dismiss and denial of appellants' motions for a temporary injunction and for summary judgment in this suit to prevent the construction of four hotel-casinos at the south shore of Lake Tahoe. The appellants are California Tahoe Regional Planning Agency (CTRPA) and the State of California, the League to Save Lake Tahoe (League), and the Sierra Club. The appellees are Douglas County, Nevada, Ted Jennings, Oliver Kahle, Harvey's Wagon Wheel, Inc. (Harvey's), and Park Cattle Co. (Park), five in all. In their complaints, all appellants assert that certain administrative action of Douglas County violated the relevant portion of the California-Nevada interstate compact to regulate the Lake Tahoe Basin. The CTRPA and the State of California allege a second cause of action in which they assert a nuisance under federal common law against all appellees except Park. ¹ After a hearing, the district court refused all relief to appellants and granted appellees' motion to dismiss. We affirm.

I.

Factual Background.

A. Facts Directly Relevant To This Case.

This case is only the latest in a series of cases, a sketch of which appears below, in which this court has been called upon to intervene in, interpret, or implement the provisions of the Tahoe Regional Planning Compact (Compact). California and Nevada entered into this Compact in 1968 and Congress gave its consent in December 1969. Pub. L. No. 91-148, 83 Stat. 360 (1969). The Compact created a regional agency, the Tahoe Regional Planning Agency (TRPA), with powers to regulate and control development within the Lake Tahoe Basin by adopting a regional plan and adopting all ordinances, rules, regulations and policies necessary to effectuate the plan. See League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 507 F.2d 517, 518 (9th Cir. 1974), Cert. denied, 420 U.S. 974, 95 S.Ct. 1398, 43 L.Ed.2d 654 (1975).

As this court previously noted Pursuant to its mandate, the TRPA adopted various procedural regulations and imposed certain land use, height and density restrictions applicable to developments in the Basin. If a builder wanted to develop more than 200 square feet of land or to erect certain types of structures, he was required first to seek a permit from the local permit-issuing authority (generally, the zoning authority of the county in which the construction was to take place). The permit-issuing authority, according to TRPA regulations, was required to adhere to the policies and land restrictions adopted by the TRPA but was granted the power to issue variance permits under certain circumstances.

California ex rel. Younger v. Tahoe Regional Planning Agency, 516 F.2d 215, 216 (9th Cir.), Cert. denied, 423 U.S. 868, 96 S.Ct. 131, 46 L.Ed.2d 97 (1975). The TRPA can review variance permits issued by local zoning boards, but must act affirmatively to reverse or modify the permit grant by a dual majority within 60 days or the permit is "deemed approved" and the action of the local authority stands. See California ex rel. Younger v. Tahoe Regional Planning Agency, supra.

The TRPA adopted the ordinance at issue February 10, 1972. Land Use Ordinance § 7.13 limits the height of buildings in tourist-commercial areas to 40 feet,

except that the permit-issuing authority, by administrative permit pursuant to Section 8.33, may authorize a greater height to the extent that the permit-issuing authority determines that . . . (4) such greater height will better promote the protection of the environment of the area.

Section 8.33 requires that before issuing an administrative permit, a permit-issuing authority find that the particular use is not detrimental to the general welfare and will not cause substantial environmental consequences.

Each of the four defendant hotel-casino builders received administrative permits issued by the Douglas County Commissioners after hearings and a presentation of evidence. The sizes of the projects ranged in height from 100 feet (Kahle) to 193 feet (Harvey's); in number of hotel rooms from 446 (Park) to 960 (Kahle); and in land coverage from 45% (Kahle) to 75% (Harvey's). Park received the first permit April 20, 1973; Harvey's received its permit, the last of the four, on June 20, 1973. The Douglas County board issued written findings for the Jennings and Kahle projects which merely repeat verbatim the findings required by the Land Use Ordinance, but issued no written findings with respect to the Harvey's and Park permits. As the next step, the Nevada Tahoe Regional Planning Agency, a state agency empowered to exercise environmental control over gaming establishments in the Nevada side of the Basin, approved each project. ² Finally, as required by TRPA ordinance, each project was presented to the TRPA for review. ³ In each case the TRPA failed to achieve a dual majority as to the projects, and the projects were "deemed approved." ⁴ Measured by sixty days from submittal to the TRPA, on September 20, 1973 Harvey's project, the last of the four projects to be so approved, received its so-called "default approval."

The present appeal springs from two separate actions, both filed in federal district court August 20, 1977, almost four years after the default approvals. One count of each complaint charges that each permit was invalid because not in compliance with the 40-foot height limitation in Land Use Ordinance (L.U.O.) § 7.13. California and the CTRPA also claimed that the building of the projects will result in a common law interstate nuisance adversely affecting California and its citizens. Defendants Jennings, Kahle and Harvey's moved to dismiss on numerous grounds without answering the complaints. Park answered and moved for summary judgment. After hearing oral argument and accepting submitted evidence, the district court issued its opinion on October 20, 1977, dismissing appellants' actions on several grounds. While these cases were on appeal, this court, on September 5, 1978, granted an injunction preventing Harvey's from commencing construction pending our decision.

B. A Sketch of Prior Litigation.

The present case is only one of several initiated in response to appellees' four projects. Various combinations of plaintiffs and defendants have skirmished inconclusively in both federal and state court. In the first case, filed September 20, 1973, the League and the Sierra Club initiated a suit in federal district court against the TRPA, Harvey's and Park claiming that the TRPA failed to comply with the Compact's requirements and focusing predominantly on the surface coverage provisions adopted by the TRPA. This suit engendered two opinions by this court; neither reached the substance of the claim. Thus, in League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 507 F.2d 517 (9th Cir. 1974), after the district court first dismissed the action for lack of subject-matter jurisdiction, we reversed, holding that interpretation of an interstate compact raised a federal question. After remand, in League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 558 F.2d 914 (9th Cir. 1977), we reversed a second dismissal seemingly premised upon impermissible joinder. Subsequent to these two reversals, the parties voluntarily dismissed a third appeal from a denial of a preliminary injunction.

In a second suit, filed August 7, 1974, the State of California attacked the validity of the Jennings and Kahle permits asserting that the permits could not be considered "deemed approved" because the TRPA's vote had failed to yield a dual majority. This court upheld the district court's interpretation of the Compact to the effect that a dual majority was required before any "action" could be taken, and that therefore the failure of a vote to yield a dual majority means that "the local permit issuing authority in effect stands affirmed." California ex rel. Younger v. Tahoe Regional Planning Agency, 516 F.2d 215, 219 (9th Cir.), Cert. denied, 423 U.S. 868, 96 S.Ct. 131, 46 L.Ed.2d 97 (1975). Afterwards, the district court dismissed the action "pursuant to the opinion and mandate of the United States Court of Appeals for the Ninth Circuit" on October 15, 1975.

The League filed suit against the TRPA and all appellees in Nevada state court on August 16, 1974. It claimed that the permit issuances violated TRPA ordinances and state and local permit requirements. The League asserted the same lack of findings and insubstantial evidence claims raised in the present suit. The trial court dismissed the action in September 1975 because the League failed to qualify to do business as a corporation in Nevada prior to filing the complaint. The Nevada Supreme Court affirmed the lower court, going on to state that refiling would be barred by the Nevada 25-day...