Fernhoff v. Tahoe Regional Planning Agency

Citation803 F.2d 979
Decision Date28 October 1986
Docket NumberNo. 85-1624,I-X,D,85-1624
PartiesJames FERNHOFF, Plaintiff-Appellant, v. TAHOE REGIONAL PLANNING AGENCY, and Doesefendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

James Fernhoff, pro se.

Susan E. Scholley, Heaton, Doescher & Owen, Ltd., Carson City, Nev., for defendants-appellees.

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

Before SCHROEDER, REINHARDT, and BEEZER, Circuit Judges.

REINHARDT, Circuit Judge:

Appellant James Fernhoff, appearing pro se, petitioned for a writ of mandamus declaring either that the Tahoe Regional Planning Agency ("the Planning Agency") has no authority to prohibit him from developing a parcel of land he owns near Lake Tahoe or, in the alternative, directing the Planning Agency to grant any authorization necessary for him to develop the property. The district court granted the Planning Agency's motion for summary judgment and denied Fernhoff's petition. We affirm.


Fernhoff owns 4.67 acres of land near Lake Tahoe and wishes to develop this property by dividing it into four lots and constructing a single-family house on each. On December 8, 1977, he submitted an application and parcel map to Douglas County for approval, and the County sent the application and map to the Planning Agency. The map depicted the four proposed lots as well as a proposed road providing access to them. By letter dated December 13, 1977 a member of the Planning Agency's staff notified Fernhoff that the map did not comply with its Land Use Ordinance 9.31 and requested him to furnish the following information so that it could complete its review: land capability, land use district, existing land coverage, and building footprints.

The Douglas County Department of Public Works sent Fernhoff a letter January 3, 1978 informing him that the Douglas County Planning Commission had at its regular meeting on December 29, 1977 approved his map subject to several conditions, including compliance with the Planning Agency's requirements that were mentioned in its December 13 letter and the paving of the road that the parcel map provided for. Fernhoff contends that he agreed to pave the road, and otherwise immediately complied with the conditions contained in the January 3 letter.

On May 12, 1978, Fernhoff began the necessary grading and clearing for the road depicted on the parcel map. Four days later he was arrested, and on May 18, 1978 he was charged with eight misdemeanor counts alleging violations of various Nevada statutes, Douglas County Code sections, and Planning Agency ordinances which regulate grading and felling of trees. A justice court jury convicted him, but the conviction was reversed on appeal because of an unconstitutional jury instruction. On May 19, 1978, Douglas County filed a civil complaint seeking injunctive relief to prevent Fernhoff from further grading and to require him to clean up the site to minimize the danger of fire and erosion.

At a hearing on the County's request for a temporary restraining order, the parties entered into a court-approved stipulation providing that Fernhoff would do no further grading or tree cutting and would implement erosion control measures and clear away debris on the property. On May 31, 1978, pursuant to further stipulation by the parties, the court ordered that the May 19 stipulation remain in effect until further order of the court. The suit was dismissed January 3, 1983.

On August 18, 1980 the County issued Fernhoff an administrative permit for a variance from the land coverage restrictions on his property. It appears that Fernhoff needed this variance in order to construct the road on his property without violating Planning Agency regulations governing the percentage of his land that could be developed. Fernhoff had also filed an application for additional land coverage with the Planning Agency on May 10, 1980. On September 24, 1980, Fernhoff personally appeared before that body to urge that the application be granted. On September 26, 1980, he was notified that the Planning Agency had denied the application and that his road was therefore unauthorized and must be restored to its natural condition.

Fernhoff filed a petition for writ of mandamus in Nevada district court on January 15, 1981 requesting the court to order Douglas County to issue all necessary permits and approvals for his project. Fernhoff alleged that, following the County's approval of his map, he had fulfilled all the required conditions, but the County had refused to fulfill its obligation to issue the proper permits. On March 7, 1983, Fernhoff and Douglas County entered into a stipulation providing in pertinent part:

1. That Petitioner appeared before the Douglas County Board of Commissioners on September 9, 1982, at which time the Douglas County Board of Commissioners approved the parcel map at issue in this matter subject to the following conditions and findings:

a) That Petitioner provide improvement plans to Douglas County, Nevada;

b) That Petitioner obtain an administrative permit from the Tahoe Regional Planning Agency for environmental impacts due to the construction of the road in issue, prior to Douglas County issuing its construction permit for the road serving the individual lots;

c) That Petitioner must either complete construction of the road serving the individual lots or provide a letter of credit prior to recordation of the parcel map; and

d) That the parcel map was preliminarily approved by the Douglas County Planning Commission on December 29, 1977, subject inter alia, to subsequent review and approval by the Douglas County Board of Commissioners.

2. That this matter is dismissed with prejudice.

(Emphasis added). A March 22, 1983 court order ratified the stipulation and ordered the parties to adhere to it.

Fernhoff later appeared before the Planning Agency at a "show cause" hearing to explain why he had not complied with its September 1980 letter directing him to restore the road. At some point the Planning Agency notified Fernhoff that its Land Use Ordinance 81-5, which had been adopted in November 1982, prohibited construction of the road and that therefore it could not accept his application for an administrative permit. 1

On October 26, 1983, Fernhoff filed the current action, a petition for writ of mandamus against the Planning Agency, in state court. The Planning Agency removed the proceeding to the United States District Court. Fernhoff seeks a writ of mandamus declaring that the Planning Agency is without jurisdiction to prohibit his development project or, in the alternative, directing it to grant all necessary approvals for the project. In a published opinion, the district court granted the Planning Agency's motion for summary judgment on November 30, 1984. Fernhoff v. Tahoe Regional Planning Agency, 599 F.Supp. 185 (D.Nev.1984). Fernhoff appeals. 2


In the district court, the Planning Agency moved for dismissal pursuant to Fed.R.Civ.P. 12(b), and Fernhoff responded. Both parties relied upon matters outside the pleadings. The district judge, construing the Planning Agency's motion as one for summary judgment, granted the motion without an oral hearing. Fernhoff then moved for "Reconsideration, For Oral Hearing and For New Trial." The district court denied Fernhoff's motion, again without an oral hearing. Fernhoff contends the district court erred by granting summary judgment without notice or hearing and by denying his motion for reconsideration without notice or hearing.

A. Notice--Summary Judgment

Although Fernhoff's argument on this point is not clear, we assume his contention is that the district court should have given him adequate notice that it was considering the Planning Agency's motion as one for summary judgment instead of one for dismissal. However, Fernhoff requested the district court to treat the motion as one for summary judgment. 3 He cannot now complain that the court did so.

B. Hearing--Summary Judgment

In Dredge Corp. v. Penny, 338 F.2d 456 (9th Cir.1964), we stated that "a district court may not, by rule or otherwise, preclude a party from requesting oral argument, nor deny such a request when made by a party opposing the motion unless the motion for summary judgment is denied." Id. at 462 (footnote omitted). However, district courts are authorized "to provide by rule that a party desiring oral argument on a motion for summary judgment must apply therefor, in the absence of which oral argument will be deemed to have been waived." Id. at 461-62; see also Demarest v. United States, 718 F.2d 964, 968 (9th Cir.) cert. denied, 466 U.S. 950, 104 S.Ct. 2150, 80 L.Ed.2d 536 (1984). The United States District Court for the District of Nevada has adopted such a rule. Rules of Practice 16(g).

Fernhoff made no specific request for an oral hearing on the Planning Agency's motion. A district court's failure to grant an oral hearing on a motion for summary judgment does not constitute reversible error in the absence of prejudice. Houston v. Bryan, 725 F.2d 516, 518 (9th Cir.1984). Here, nothing in the record, briefs, or oral argument suggests any prejudice resulting from the district court's actions.

C. Motion for Reconsideration

Fernhoff does not explain his contention that the district court erred by failing to provide him notice or a hearing before denying his motion for reconsideration; instead, on appeal he argues only that the court erred by not considering three exhibits attached to his motion that allegedly evidence the Planning Agency's bad intent. Fernhoff has never explained, either in the court below or on appeal, why he did not present this evidence earlier or how the court's failure to consider the exhibits was prejudicial to his case. At any rate, given our disposition of the matter, any error by the district court in failing to consider the additional evidence or to hold...

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