Harrosh v. Tahoe Reg'l Planning Agency
| Decision Date | 10 November 2022 |
| Docket Number | 2:21-cv-01969-KJM-JDP |
| Parties | Michael Harrosh, Plaintiff, v. Tahoe Regional Planning Agency; George and Virginia Johannessen, Defendants. |
| Court | U.S. District Court — Eastern District of California |
George and Virginia Johannessen obtained approval to build a new pier on their lot on the west shore of Lake Tahoe. Their neighbor to the south, Michael Harrosh, challenges that approval in this action, which he filed against the Johannessens and the agency charged with the approval decision, the Tahoe Regional Planning Agency. The Agency has moved to dismiss. As explained in this order, that motion is denied. At this early stage of the case the court cannot conclude the approval was proper.
Harrosh now also moves for a preliminary injunction barring construction of a pier while this case is pending. He has not shown he will suffer irreparable harm in the absence of an injunction, a prerequisite to injunctive relief. His motion is therefore also denied, as explained in this order.
Lake Tahoe is famous for its beauty, striking blue color, and exceptional clarity. Tahoe-Sierra Pres. Council, Inc. v Tahoe Reg'lPlan. Agency, 535 U.S. 302, 307 (2002). “It first caught the world's attention with the 1960 Winter Olympics . . ., when the area became a recreation destination and home to a rapidly expanding population.” Sierra Club v. Tahoe Reg'lPlan Agency, 840 F.3d 1106, 1108 (9th Cir. 2016). “It has since become the focus not only of admiration for the lake's beauty and clarity, but of litigation over the efforts to preserve them.” Id.
Since the 1950s and ‘60s, greater development in the Lake Tahoe basin has increased runoff and mineral deposits into the lake. Tahoe-Sierra, 535 U.S. at 307. As a result, more algae has begun to grow in the lake's waters, which have lost their original hue and clarity. See id. at 307-08; League to Save Lake Tahoe v. Tahoe Reg'lPlan. Agency, 739 F.Supp.2d 1260, 1265 (E.D. Cal. 2010).[1] To address this problem and other concerns, the California and Nevada state legislatures adopted the Tahoe Regional Planning Compact, which Congress approved in the late 1960s. See Tahoe-Sierra, 535 U.S. at 309; League to Save Lake Tahoe v. Tahoe Reg'lPlan. Agency, 507 F.2d 517, 518 (9th Cir. 1974) (citing U.S. Const. Art. I, § 10, cl. 3).
The Compact is federal law for purposes of a federal court's subject matter jurisdiction. See League to Save Lake Tahoe, 507 F.2d at 524-25; Lake Tahoe Watercraft Recreation Ass'n v. Tahoe Reg'lPlan. Agency, 24 F.Supp.2d 1062, 1067-69 (E.D. Cal. 1998). It creates the Tahoe Regional Planning Agency, which adopted a series of regulations. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'lPlan. Agency, 322 F.3d 1064, 1070 (9th Cir. 2003). “Unfortunately,” those regulations “allowed numerous exceptions and did not significantly limit the construction of new residential housing.” Tahoe-Sierra, 535 U.S. at 309. “California became so dissatisfied” with the Agency and its regulations that it “withdrew its financial support and unilaterally imposed stricter regulations on the part of the Basin located in California.” Id.
California and Nevada later amended the Compact and “redefined” the Agency's “structure, functions, and voting procedures,” and Congress approved these amendments in 1980. Tahoe-Sierra, 535 U.S. at 310. The amended Compact requires the Agency to create “environmental threshold carrying capacities,” that is, environmental standards “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.” League to Save Lake Tahoe, 739 F.Supp.2d at 1265 (quoting Compact Arts. I(b), II(i), ECF No. 32).[2] The amended Compact tasks the Agency with regulating the Lake Tahoe Basin to achieve these thresholds, both by adopting and administering general ordinances, rules and regulations, see, e.g., Compact Art. I(b), and by making decisions about specific projects, see, e.g., id. Art. V(g).
This case concerns the second category: specific projects. The Compact defines “project” as “an activity undertaken by any person, including any public agency, if the activity may substantially affect the land, water, air, space or any other natural resources of the region.” Id. Art. II(h); see also Code of Ordinances §§ 2.1.2, 2.2.1, ECF No. 16-2.[3] The Compact creates a unique supermajority voting procedure for “approving a project.” Compact Art. III(g)(2). The Agency's Governing Board conducts the vote. Id. That body is composed of two delegations of seven voting members each. See id. Art. III(a). The members of the first delegation, the “California delegation,” are appointed by the El Dorado and Placer county boards of supervisors, the South Lake Tahoe City Council, the Governor of California, the speaker of the California Assembly, and the California Senate Rules Committee. See id. Art. III(a)(1). Second, the members of the “Nevada delegation” are appointed by the boards of the Douglas and Washoe county commissioners, the Carson City Board of Supervisors, the Governor of Nevada, the Nevada Secretary of State, and the director of the state's department of conservation and national resources. See id. Art. III(a)(2). Before a project is approved, under subjection (g)(2) of Article III, “the affirmative vote of at least five members from the State in which the project is located and the affirmative vote of at least nine members of the governing body are required.” Id. If the Governing Board votes to approve a project, its decision must “be supported by a statement of findings, adopted by the agency.” Id. If a project does not garner the necessary votes, “upon a motion of approval, an action of rejection shall be deemed to have been taken.” Id.
The “project” at the center of this case is the Johannessens' proposal to construct a singleparcel residential pier on their lot. See Compl. ¶¶ 5-7, ECF No. 1. According to the complaint, which for purposes of a motion to dismiss the court accepts as true, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the demand for single-parcel residential piers far outstrips available permits, so the Agency holds a lottery in which the winners may apply for a pier permit. See id. ¶¶ 24, 30; Code of Ordinances § 84.4.4(C)(1). In the summer of 2019, the Johannessens won a chance to apply for a permit. Compl. ¶ 40. They submitted their plan to the Agency about six months later. Id. ¶ 41. Harrosh owns land just to the south of the Johannessens. Id. ¶¶ 5, 11. His property already has a pier. Id. ¶¶ 5-6. He claims that if the Johannessens' planned pier is constructed, it would be difficult and dangerous to approach his own pier from the water. See id. ¶ 7.
The Johannessens' application was referred to the hearings officer, who held a meeting in late Spring 2021. See id. ¶ 50. Harrosh presented evidence in opposition to the Johannessens' application, id. ¶ 68, but the hearings officer approved the application and issued a permit, id. ¶¶ 70-75. Harrosh pursued an appeal to the Governing Board. See id. ¶ 79. The Agency's general counsel advised the Board during the appeal. See id. ¶ 87. He told the Board the first step was to decide whether it would “accept” or “reject” the appeal, then to decide whether to modify or reject the permit. Id. He said that if at least five members of the California delegation and at least nine members overall voted “aye,” then the Board would “accept” the appeal and could either modify or reject the hearings officer's decision. Id. ¶¶ 87-88. Otherwise, counsel explained, the Board would “reject” the appeal, the hearings officer's decision would stand, and the Agency would issue a permit to the Johannessens. See id. ¶ 88. Counsel recommended rejecting the appeal. Id. ¶ 86.
There were two vacancies among the seven-member California delegation at the time. Id. ¶ 81. As a result, given counsel's instructions, if even a single member of the California delegation did not vote “aye,” then the Governing Board would reject the appeal. This appeared to doom Harrosh's appeal from the outset: one member of the California delegation, Cindy Gustafson, told the Board at the beginning of the meeting that she had a “long-standing social relationship with the Harrosh family,” she had visited their home and pier for social events, and she had discussed the appeal with the Harrosh family before the hearing. Id. ¶ 85. If she voted for Harrosh, then any decision to accept the appeal and reject the permit could be subject to attack based on the appearance of her partiality. If she voted for the Johannessens, the appeal would necessarily be rejected. The result would be the same if she abstained.
The Governing Board heard evidence, the parties' arguments, and public comments, and board members made comments. Id. ¶¶ 89-90. Board members then voted. Ms. Gustafson abstained, and all other board members voted “no.” See id. ¶¶ 92-97. The Board thus rejected the appeal by default.
Harrosh filed this action after the vote, asserting four claims. His first claim can be expressed in a variety of ways, but it boils down to a simple theory: the Governing Board's vote was invalid because the Compact requires at least five “affirmative” votes from the California delegation to approve a permit, but only four members of the California delegation voted to reject his appeal. See id. ¶¶ 108-20. In his second claim, he alleges the Agency misinterpreted its Code of Ordinances, which imposes specific limits on pier lengths. See id. ¶¶ 121-37. Third, he alleges the Agency was wrong to conclude the Johannessens' pier would not be a threat to public safety. See id. ¶¶ 138-51. Fourth, he alleges the hearing and appeal procedure violated his Fifth Amendment right...
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