A legal battle between wealthy property owners on the shores of Lake Tahoe appears to have been won by a group wanting to build a new boat dock. The Ninth U.S. Circuit Court of Appeals rejected all arguments against the proposed dock presented by the Glenbrook Homeowners Association and allied parties, and the court upheld the Tahoe Regional Planning Agency’s approval of the project.
Interestingly, the homeowners seeking to stop the project were represented by attorney Ronald Zumbrun, a longtime advocate of property rights and co-founder of the Pacific Legal Foundation. Representing the dock proponents was E. Leif Reid, son of U.S. Senate Democratic leader Harry Reid — even though one of the proponents is liquor magnet Larry Ruvo, who donated more than $200,000 to President Bush’s re-election campaign. Of course, one of Ruvo’s partners in the project is Harvey Whittemore, possibly Nevada’s most prominent Democratic fundraiser.
Four years ago, Ruvo, Whittemore and other partners sought approval from the Tahoe Regional Planning Agency (TRPA) for a 300-foot-long recreational pier on the Nevada side of the lake. TRPA regulations make pier development very difficult, but the agency approved the application. Among the conditions of approval, though, were the requirements that a court determine the proposed pier would not interfere with the recreational and access rights of the Glenbrook Homeowners Association, and that a court determine the pier proponents do not have the right to use the homeowners association’s existing community pier.
Project opponents are residents of the private Glenbrook development on the shores of the high Sierra lake. They have contended throughout the proceedings that the pier proponents were pursuing a commercial project that was not being adequately described, and that the project would harm Glenbrook residents’ property rights. The opponents also maintained that TRPA gave the pier proponents preferential treatment because they are rich and politically connected.
After TRPA issued its decision, three lawsuits were filed and subsequently consolidated. In 2003, U.S. District Court Judge Roger Hunt upheld TRPA’s approval of the project and found that the pier would not interfere with the homeowners association’s pier. However, Hunt also ruled that the pier proponents have the right to access the existing Glenbrook pier — a ruling that essentially blocked the project.
Everyone appealed, setting up the Ninth Circuit’s ruling squarely for the pier proponents.
The homeowners association argued that TRPA violated the National Environmental Policy Act by not preparing an environmental impact statement for the project and by not considering the cumulative impacts of the pier and what the homeowners claimed was a larger commercial project. In its brief treatment of the issue, however, the Ninth Circuit ruled that the state-federal compact that created TRPA has its own rules for environmental review, and NEPA does not apply.
As for the conditions imposed by TRPA, the Ninth Circuit ruled for the pier proponents in both instances. The homeowners association has an easement across the pier proponent’s land to provide access to the existing community pier. The association argued that construction of the proposed pier in the easement would violate the association’s rights. But the District Court and the appellate panel pointed to language in the easement that specifically permits the property owner to develop recreational uses.
On the question of access to the existing pier, the Ninth Circuit overturned the lower court. The Ninth Circuit determined that a contract for pier access between an earlier property owner and the homeowners association was a personal contract that did not run with the land. The right of pier access was not conveyed when the latest owners acquired the property, the Ninth Circuit ruled.
Glenbrook Homeowners Association v. Tahoe Regional Planning Agency, No. 03-17224, 05 C.D.O.S. 8496, 2005 DJDAR 11584. Filed September 21, 2005.
For the homeowners association: Ronald Zumbrun, (916) 486-5900.
For TRPA: William J. White, Shute, Mihaly & Weinberger, (415) 552-7272.
For the pier proponents: E. Leif Reid, Lionel, Sawyer & Collins, (775) 788-8690.