Federal judge dismisses scenic lawsuit

A U.S. District Court judge has dismissed a lawsuit that challenged rules telling homeowners along the shores of Lake Tahoe how they can affect the scenery.

The rules, approved by the Tahoe Regional Planning Agency, require that new homes built within 300 feet of the lakeshore use earth tone paint, limit the amount of window glass facing the lake, and screen its edges with trees or shrubs, among other restrictions.

"The court I think held this up as a model of good planning," said John Marshall, attorney for the agency. "We passed a tough test."

A citizens' group based in Incline Village, where there is a high concentration of lakeshore development, filed its lawsuit after the scenic ordinances were approved in November 2002.

The suit contained nine claims of action, eight of which Judge Edward Reed dismissed last month in U.S. District Court in Reno. In general, the claims argued the scenic ordinances are overly restrictive and counterproductive.

"Obviously (we're) disappointed," said Bob Wheeler, a real estate agent and founding member of the group, the Committee for the Reasonable Regulation of Lake Tahoe.

Judge Edward Reed Jr. indicated in his 70-page ruling the committee could amend its lawsuit and file it again within 60 days if it provides more facts to support two of its claims. Wheeler on Tuesday said he did not know if the committee will amend its complaint.

"I haven't had an opportunity to talk to the board members," Wheeler said. "We'll review our options and move forward from there."

The lawsuit contended that the scenic-review ordinances conflict with local fire protection rules. Reed found otherwise.

"The scenic review ordinance mitigates any possible fire danger by including a clause that 'the applicant shall not submit vegetative screening inconsistent with local fire protection standards,'" Reed stated in his decision. "The scenic review ordinance does not interfere with local fire protection standards because it includes a clause that specifically incorporates local fire standards."

The judge stated the strongest part of the TRPA's defense of its ordinance is the fact that the ordinance allows for different levels of review, depending on what type of project the applicant has requested.

"TRPA argues that this will allow for the streamlining of basic projects with little scenic impact, while allowing for more in-depth and objective treatment of projects that will have a greater impact," Reed wrote. "To streamline smaller projects, the ordinance exempts normal repair and maintenance (excluding painting or anything that affects color), as well as in-kind replacement."

Staff at the TRPA said they look forward to moving beyond the lawsuit and working with the community on a 20-year regional plan due by 2007.

"We want to move ahead and engage the public," said Julie Regan, TRPA communications director. "If they have any concerns about the scenic ordinance we are in the process of formulating the 2007 regional plan and we will be having many meetings that we hope are very positive and constructive."