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California Tahoe Regional Planning Agency v. Jennings

Citation: 9 ELR 20131
No. Nos. 78-1160, -1224, 594 F.2d 181/(9th Cir., 02/15/1979)

Affirming the lower court, the Ninth Circuit Court of Appeals holds that approval by the Douglas County, Nevada commissioners of construction of four hotel-casinos on the south shore of Lake Tahoe does not violate the California-Nevada interstate compact concerning the lake even though the projects exceed the height limitation established by an ordinance of the Tahoe Regional Planning Agency (TRPA). The TRPA failed to act to reverse or modify these variances by the required dual majority and they were thus approved by default. The court decides that there is federal jurisdiction to interpret the TRPA ordinance because if the matter were left to the Nevada and California courts, differing interpretations could result, which would impair the effective functioning of the compact. Concluding that the aim of the compact and the ordinance is to foster orderly development rather than stop economic development in the Tahoe Basin, the court finds that the TRPA ordinance does not constitute an absolute prohibition against building heights in excess of 40 feet. The court also rules that withstanding the TRPA default approval, the county commissioners' action is subject to judicial review. Because local procedures apply to decisions by local permit-issuing authorities, however, the validity of the issuance of a local permit must be determined according to state law and the challenges to the permit in this case are barred by Nevada's statute of limitations. Finally, the court affirms the district court's dismissal of a claim that the projects should be enjoined on the ground that their development will result in an interstate common law nuisance. Although such claims are not precluded by the federal pollution control laws, the allegation that the four hotels will indirectly create a nuisance by attracting more people and automobiles to the Lake Tahoe Basin is insufficient to establish that the danger of a nuisance in this case is real and immediate.

Counsel for Appellants
E. Robert Wright, Ass't Attorney General
555 Capitol Mall, Suite 350, Sacramento CA 95814
(916) 465-9555

Laurens H. Silver
Sierra Club Legal Defense Fund
311 California St., San Francisco CA 94104
(415) 398-1411

Counsel for Appellees
John Frankovich
McDonald, Carano, Wilson, Bergin & Bible
P.O. Box 2670, Reno NV 89505
(702) 322-0635

Peter D. Laxalt
Laxalt, Berry & Allison
1 E. Liberty St., Suite 604, Reno NV 89505
(702) 329-1318

Gordon H. DePaoli
Woodburn, Wedge, Blakey & Folsom
1 E. First St., Reno NV 89501
(702) 329-6131

F. R. Breen
Breen, Young, Whitehead & Hoy
232 Court St., Reno NV 89501
(702) 786-7600

Counsel for Amicus Curiae
Charles Biblowit
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2956

Before MERRILL and SNEED, Circuit Judges, and LINDBERG,* District Judge.