Miller v. Tahoe Reg'l Planning Agency
| Docket Number | 2:22-cv-02113 KJM AC PS |
| Decision Date | 02 November 2023 |
| Parties | ALAN MILLER, Plaintiff, v. TAHOE REGIONAL PLANNING AGENCY, Defendant. |
| Court | U.S. District Court — Eastern District of California |
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is proceeding in this action pro se and the case was accordingly referred to the undersigned by Local Rule 302(c)(21). This case is brought pursuant to the Tahoe Regional Planning Compact, P.L. 96-551, 94 Stat. 3233 (“Compact”) and, as an action for review on the administrative record, is governed by Federal Rule of Civil Procedure 65 and Local Rule 261. The parties filed the required cross-motions for summary judgment. ECF No. 28 (plaintiff's motion); ECF No. 35 (defendant's motion). For the reasons set forth below, the undersigned recommends that plaintiff's motion be DENIED defendant's motion be GRANTED, that judgment be entered for defendant and the case be closed.
Plaintiff also moves to supplement the administrative record. ECF No 29. Defendant opposed that motion, ECF No. 31, and plaintiff replied. ECF No. 32. For the reasons set forth below, the motion to supplement the record is DENIED. Finally, plaintiff moves to exceed page limits in his reply brief. ECF No. 37. That motion is GRANTED and all of plaintiff's briefing has been fully considered.
Plaintiff challenges a discrete action of defendant Tahoe Regional Planning Agency (“TRPA”)'s Governing Board to deny plaintiff's administrative appeal of the Executive Director's approval of a plan revision (“the Plan Revision”) for a cell tower project (the “Project”). Per plaintiff's description, the Project involved TRPA granting an exception to its own regulations that prevent excavation exceeding five feet, to prevent interference with a belowground water table. ECF No. 28 at 1. Plaintiff does not allege that he challenged the Project approval itself; he asserts only that he appealed the approval of the Revision, which approved deepened excavation from 7.5 to 13.5 feet and doubled the amount of material removed for the tower from 25 to 50 cubic yards. He alleges that his appeal was arbitrarily and capriciously denied by the TRPA Governing Board. Id.
The TRPA contends that substantial evidence in the administrative record demonstrates that, due to the soil profile at the Project site, groundwater was neither anticipated nor encountered during the excavation. ECF No. 35 at 2. It further contends that because plaintiff does not identify any prejudicial abuse of discretion by TRPA, his summary judgment motion should be denied and TRPA's cross-motion for summary judgment should be granted. Plaintiff makes twelve separate claims of violative conduct, though the ultimate question before the court is whether the Governing Board's denial of plaintiff's appeal was supported by substantial evidence and therefore not a “prejudicial abuse of discretion” within the meaning of Article VI(j)(5) of the Tahoe Regional Planning Compact (“the Compact”).
In 1968, California and Nevada entered the Tahoe Regional Planning Compact, which was approved by Congress in 1969. League to Save Lake Tahoe v. Tahoe Reg'l Planning Agency, 739 F.Supp.2d 1260, 1265 (E.D. Cal. 2010) (Karlton, J.), affd in part, vacated in part, remanded, 469 Fed.Appx. 621 (9th Cir. 2012). The Compact was amended and ratified by Congress in 1980. Public Law 96-551, 94 Stat. 3233 (1980). Congress approved an additional amendment in 2016. Public Law 114-322, 130 Stat. 1628, sec. 3603 (2016).[1] The Compact requires TRPA to establish environmental threshold carrying capacities and to adopt and enforce a Regional Plan to achieve and maintain those thresholds. Compact at Art. I(b). An “environmental threshold carrying capacity” is “an environmental standard 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.” Compact at Art. II(i). TRPA must regulate the region to achieve these thresholds “while providing opportunities for orderly growth and development consistent with such capacities.” Compact at Art. I(b).
The Compact also directs the agency to adopt and administer ordinances, rules, and regulations. Art. I(b). In compliance with that instruction, TRPA has adopted a Code of Ordinances (“Code”)[2] to implement the Regional Plan's Goals and Policies, and Rules of Procedure (“ROP”), which set standards for how the agency operates and how certain processes are carried out. TRPA amends the Code and ROP from time to time. Id. The Compact provides that TRPA “shall interpret and administer its plans, ordinances, rules and regulations in accordance with the provision of this compact.” Art. I(c). Like the Compact, TRPA's duly adopted ordinances, rules, and regulations themselves have the legal status of federal law. Lake Tahoe Watercraft Recreation Ass'n v. Tahoe Reg'l Plan. Agency, 24 F.Supp.2d 1062, 1068-69 (E.D. Cal. 1998)
Any development project approved by TRPA must comply with the Regional Plan and applicable ordinances, rules and regulations established by the agency. Compact at Art. III(g)(2). Under TRPA's Code of Ordinances, all new construction in the Lake Tahoe basin that “may have a substantial effect on the land, air, water space, or any other natural resources in the Tahoe region” must undergo review and approval by TRPA. Code at §2.1.2. The Executive Director has authority to modify project approvals. See ROP 5.15; AR 1586-1587. Under Code §2.1.2, all activities in the Lake Tahoe basin that “may have a substantial effect on the land, air, water space, or any other natural resources in the Tahoe region” are “projects subject to TRPA review and approval.” Any development project approved by TRPA must comply with the Regional Plan and applicable ordinances, rules and regulations established by the agency. Compact at Art. VI(b). Project applications are reviewed by TRPA staff, with some permits being issued by the Executive Director, some applications considered by a Hearings Officer, and some heard by the Governing Board, depending on the type of project at issue. See Code §2.2.2.
The governing body of TRPA is its Governing Board, which consists of 15 members- seven from California, seven from Nevada and one non-voting Presidential Appointee. Compact at Art. III. The Governing Board adopts all ordinances, rules, and regulations that are necessary to effectuate the adopted regional plan. Id. at Art. VI(a). The Board meets once per month at a noticed public meeting. Id. at Art. III(d). TRPA has an Executive Director who is appointed by the Governing Board and oversees TRPA staff who, among other skills, have planning expertise. Id. at Art. IV(a). TRPA's Code creates a means to appeal an Executive Director or Hearings Officer decision to the Governing Board. Code at §2.2.2(G)(3). TRPA's Rules set forth procedures for appeal, which include: a deadline to file a notice of appeal (ROP §11.2); the mandatory contents of the statement of appeal (ROP §11.4); the deadline for filing the statement to have the appeal heard on the next Governing Board agenda (ROP §11.4); the requirement that the Executive Director prepare a staff position paper (ROP §11.6.1, referencing ROP §5.11.2); the appeal hearing process (ROP §11.8.2, referencing ROP §5.13); and the scope of the Governing Board's authority to affirm, modify or revoke the Executive Director's action (ROP §11.6.2).
The Governing Board has a five-member Legal Committee that serves in an advisory capacity. Among other responsibilities, the Legal Committee hears presentations regarding administrative appeals and makes recommendations to the Governing Board. AR 3398-3429. ROP §11.6.2.
The final action of the Governing Board is subject to judicial review, and the Compact contains provisions specifying who may obtain judicial review of agency decisions, which decisions are reviewable, and the standard by which a court conducts that review. Compact at Art. VI(j).
The Compact makes judicial review available to an “aggrieved person,” which it defines as “any person who has appeared, either in person, through an authorized representative, or in writing, before the agency at an appropriate administrative hearing to register objection to the action which is being challenged, or who had good cause for not making such an appearance.” Compact at Art. VI(j)(3). The Compact also sets specific deadlines for filing a judicial review action:
[Actions] arising out of the adoption or amendment of the regional plan or of any ordinance or regulation of the agency, or out of the granting or denial of any permit, shall be commenced within 60 days after final action by the agency. All other legal actions shall be commenced within 65 days after discovery of the cause of action.
The Compact...
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