Committee for Reg. v. Tahoe Reg. Plan. Agy., CVN020558-ECR(RAM).
| Decision Date | 29 March 2004 |
| Docket Number | No. CVN020558-ECR(RAM).,CVN020558-ECR(RAM). |
| Citation | 311 F.Supp.2d 972 |
| Parties | THE COMMITTEE FOR REASONABLE REGULATION OF LAKE TAHOE, a Nevada nonprofit corporation, Plaintiff, v. TAHOE REGIONAL PLANNING AGENCY, a public agency, Defendant. |
| Court | U.S. District Court — District of Nevada |
Committee for Reasonable Regulation of Lake Tahoe: Mark H. Gunderson, Law Office of Mark H. Gunderson, Reno, NV, Mark A. Teh and Ronald A. Zumbrun, Zumbrun Law Firm, Sacramento, CA, for Plaintiff or Petitioner.
Tahoe Regional Planning Agency: Jordan C. Kahn and John L. Marshall, Tahoe Regional Planning Agency, Stateline, NV, Fran M. Layton and William J. White, Pro Hac Vice Firm, Shute Mihaly & Weinberger, San Francisco, CA, for Defendant or Respondent.
State of California: Christine A. Sproul, Pro Hac Vice Firm, Deputy Attorney General, State of California, Sacramento, CA, State of Nevada: William J. Frey, Nevada Attorney General's Office, Carson City, Pacific Legal Foundation: Gregory T. Broderick and R.S. Radford, Pro Hac Vice Firm, Pacific Legal Foundation, Sacramento, CA, Tahoe Lakefront Owner's Association: Daniel Maguire, Pro Hac Vice Firm, Davis, CA, Jeremy J. Nork, Hale Lane Peek, et al., Reno, NV, for Amicus Curiae.
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.1 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).2 We held a hearing on February 19, 2004, and entered an oral order (# 77) dismissing several of plaintiff's claims. We now consider the motion to dismiss with respect to plaintiff's remaining claims, which we denoted as claims one through six above.
Before addressing the specifics 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.
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)3 ( ); People ex rel. Younger v. County of El Dorado, 5 Cal.3d 480, 96 Cal.Rptr. 553, 487 P.2d 1193, 1194 (1971) (); Kelly v. Tahoe Reg'l Planning Agency, 109 Nev. 638, 855 P.2d 1027, 1034 (1993) (); see also Tahoe-Sierra Pres. Council, 34 F.Supp.2d at 1230 ().
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.
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.4 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.
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. I(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
(a) 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.
(6) Maintenance of the social and economic health of the region depends on maintaining...
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