Committee for Reasonable Reg. v. Tahoe Regional

365 F.Supp.2d 1146

The COMMITTEE FOR REASONABLE REGULATION OF LAKE TAHOE, a Nevada nonprofit corporation, Plaintiff, v. TAHOE REGIONAL PLANNING AGENCY, Defendant.

No. CVN020558ECRRAM.

United States District Court, D. Nevada.

April 14, 2005.

Mark H. Gunderson, Law Office of Mark H. Gunderson, Reno, Mark A. Teh and Ronald A. Zumbrun, Zumbrun Law Firm, Sacramento, CA, for Plaintiff.

Jordan C. Kahn and John L. Marshall, Tahoe Regional Planning Agency, Stateline, Fran M. Layton and William J. White, Pro Hac Vice Firm, Shute Mihaly & Weinberger, San Francisco, CA, for Defendant.

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.

ORDER

EDWARD C. REED, JR., District Judge.

I. INTRODUCTION: FACTUAL AND PROCEDURAL BACKGROUND

This action arises from a challenge to Defendant Tahoe Regional Planning Agency's ("Defendant" or "TRPA") draft proposal and subsequent adoption of a new scenic review system (the "Scenic Review Ordinance" or "SRO"). The SRO represents TRPA's response to the increase in size and visibility of residential housing in the Lake Tahoe Basin (the "Basin") and the attendant decline in scenic quality as reported in TRPA's 2001 threshold evaluation report. To accomplish its goal of limiting these reported negative scenic impacts, the Scenic Review Ordinance regulates the size, color, appearance, visibility, and other aspects of residential housing on littoral and shoreland properties¹ in the Basin and is designed to encourage structures to integrate and blend with the natural environment rather than contrasting with it.

The SRO is a multi-faceted, objective system that is designed to provide multiple options for permitting. It includes: (1) new design standards (relating to color and setbacks); (2) different levels of review depending on the scope of the project (ranging from exempt in-kind replacement to a comprehensive review for new residential construction); and (3) different options for compliance (standard option, visual magnitude option, or independent review). Of central importance to the SRO, the Contrast/Visual Magnitude Rating system uses a comprehensive objective scoring procedure, which numerically scores a house's scenic impact, as viewed from the Lake towards its shore, based upon certain pre-determined traits. Basic traits of the proposed structure result in an objective color-contrast score. Examples of these basic traits are a structure's color, the percentage of a structure's perimeter which is visible, and the articulation and surface texture of a structure's facade. A high color contrast score translates into more visible square footage allowed. Conversely, a low color contrast score results in less visible square footage allowed.

On October 22, 2002, Plaintiff The Committee for Reasonable Regulation of Lake Tahoe (the "Committee" or "Plaintiff") filed a complaint (# 2) and asserted several claims. On January 16, 2003, the Committee supplemented (# 9) its original complaint with additional claims and factual assertions. TRPA then filed a motion to dismiss (# 15) on March 31, 2003. We held a hearing on February 19, 2004, and then entered an oral order (# 77) on February 20, 2004, dismissing several of the Committee's claims with prejudice. Our March 29, 2004, written order (# 78) dismissed most the Committee's remaining claims with prejudice, except (1) its claim that TRPA was required to prepare an Environmental Impact Statement ("EIS") under its Code of Ordinances and its Compact, and (2) its takings claim. Our written order (# 78) dismissed those two claims without prejudice and granted the Committee sixty (60) days to file an amended complaint to replead those two claims.

On August 13, 2004, the Committee filed an Amended Complaint and Petition for Review (# 96) (the "Amended Complaint"). TRPA filed a Motion to Dismiss (# 100) the Amended Complaint on September 10, 2004. The Committee opposed (# 102) the Motion and TRPA replied (# 106). TRPA's Motion to Dismiss (# 100) is now ripe, and we now rule on said Motion.

II. GENERAL BACKGROUND: TRPA's PURPOSE, STRUCTURE & THE SCENIC REVIEW ORDINANCE

The history of regulation at Lake Tahoe, TRPA's role in such regulation, and relevant information about TRPA is detailed in depth at Comm. for Reasonable Regulation of Lake Tahoe v. TRPA, 311 F.Supp.2d 972, 976-982 (D.Nev.2004). Since the opinion in The Committee was rendered in reference to the current dispute, we incorporate this background information and, for simplicity, we need not repeat it here. However, we will include background information that is directly relevant to the claims in the Committee's Amended Complaint.

A. TRPA's Compact.

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 Basin and also created TRPA to "coordinate and regulate development in the Basin and to conserve its natural resources." Tahoe-Sierra Pres. Council v. TRPA, 535 U.S. 302, 309, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) (internal citation and quotations omitted). California and Nevada, 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.² See Pub. Law No. 96-551, 94 Stat. 3233 (1980); Nevada Revised Statutes ("NRS") 277.200 et seq.; Cal. Gov't Code § 66801 et seq.

The Compact, which created Defendant TRPA, continues to dictate TRPA's goals, structure, responsibilities, powers, as well as other rules and requirements. See Compact, Art. I(b) & (c). Among other things, the Compact's 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. See id. at Art. I(a)(1)-(10). The Compact uses the concept of an "environmental threshold carrying capacity" to accomplish its goal of protecting and enhancing the values of the Basin, including scenic values. See id. at Art. I(b) (granting TRPA with the "power to establish environmental threshold carrying capacities"); id. at Art. II(i) (defining an "[e]nvironmental threshold carrying capacity" as "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") (emphasis added). Although Article I(b) of the Compact grants TRPA the power to establish these carrying capacities, Article V(b) of the Compact actually mandates that TRPA "shall develop ... environmental threshold carrying capacities for the region" within 18 months after the effective date of the amendments to the Compact.

B. Scenic Thresholds.

Pursuant to the Compact's command to address scenic concerns through environmental threshold carrying capacities, TRPA has adopted different environmental threshold carrying capacities addressing scenic concerns ("scenic thresholds"). See Compact, Art. V(b), Art. II(i); (see also Def.'s Request for Judicial Notice ("RJN")³, Ex. 1 at Ex. A-10 to Resolution 82-11 (adopting a scenic threshold).) SR-1, a scenic threshold adopted in 1982, sets a standard for the quality of scenic resources from viewpoints along major roadways in the Basin and from the Lake towards shore. (Def.'s RJN, Ex. 1 at Ex. A-10 to Resolution 82-11 (adopting SR-1).) SR-1 is of particular concern to this lawsuit because the Scenic Review Ordinance, which is primarily aimed at regulating views from the Lake towards the shore, is designed to attain SR-1. (Def.'s RJN, Ex. 7 at App. B to 2001 Threshold Evaluation Report.)

C. The Regional Plan & Implementing Ordinances.

The Compact also authorizes TRPA "to adopt and enforce a regional plan and implementing ordinances which will achieve" any adopted environmental threshold carrying capacities. See Compact, Art. I(b). Under the Compact's mandate, the regional plan ("Regional Plan") "shall be a single enforceable plan" and includes many correlated elements relating to the regulation of the Basin, including "[a] conservation plan for the preservation, development, utilization, and management of the scenic and other natural resources within the basin, including but not limited to soils, shoreline and submerged lands, scenic corridors along transportation routes, open spaces, recreational and historical facilities." Id. at Art. V(c)(3) (emphasis added).

TRPA adopted its current Regional Plan for the Basin in 1987. In accordance with the Compact, TRPA has also adopted implementing ordinances ("TRPA's Code of Ordinances" or "TRPA's Code"), including the Scenic Review Ordinance, to try to achieve the scenic thresholds that have been established as environmental threshold carrying capacities and are identified in the Regional Plan.⁴ (Def.'s RJN, Ex. 2.)

D. Threshold Evaluation Reports.

Section 32.8 of the Code of Ordinances directs that "TRPA shall prepare periodic reports on the attainment and maintenance of thresholds and standards" every five years. (TRPA's Code § 32.8.) According to the Code, the periodic progress reports ("threshold reports") "shall include, at a minimum[,][a] report on the amount and rate of actual progress toward threshold and standard attainment contributed by each compliance measure." (TRPA's Code §...