# Petition for Writ of Certiorari — California v. Tahoe Sierra Preservation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1226%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1995 - **Citation:** 514 U.S. 1036 ## Text | PILED. th) OFFICE OF THE CLERK In The Supreme Court of the United States October Term, 1994 a STATE OF CALIFORNIA, STATE OF NEVADA AND TAHOE REGIONAL PLANNING AGENCY, Petitioners, TAHOE SIERRA PRESERVATION COUNCIL, ET AL., Respondents. ¢ Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit + PETITION FOR A WRIT OF CERTIORARI ¢ DaANiEL E. LUNGREN, FRANKIE SUE Det Para, Attorney General of the Attorney General State of California of Nevada Roperick E. WALSTON, Kent B. Hanson, Chief Assistant Deputy Attorney Attorney General General JAN S. STEVENS, 198 S. Carson Street Assistant Attorney Capitol Complex General Carson City, Nevada *RICHARD M. FRANK, 89710 Supervising Deputy (702) 687-7322 Attorney General Attorneys for Petitioner Carta CarRusy, State of Nevada pot eens | R. J. Nicoxte, Esq. eneral SuSAN E. SCHOLLEY, Esq. Tahoe Regional Planning Agency 1515 K Street Post Office Box 944255 Sacramento, California PO Box 1038 94244-2550 Fevh C —_ (916) 445-8178 epnyr Cove, 89448 (702) 588-4547 Attorneys for Petitioner Attorneys for Petitioner Stale of Co Tahoe Regional Planning *Counsel of Record Agency COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 No. 94--94131 1 JAN 3 4 1995 QUESTIONS PRESENTED Whether, in litigation brought urder an interstate compact to challenge government regulations adopted under the terms of that compact, the applicable limita- tions period should be drawn from the express provisions of the compact itself rather than from other state or federal law. Whether, in litigation brought under 42 U.S.C. sec- tion 1983 to challenge regulatory action taken to imple- ment an interstate compact, Wilson v. Garcia, 471 U.S. 261 (1985) requires application of a state law-derived statute of limitations, as opposed to the Congressionally- approved statute of limitations prescribed by the compact itself. il PARTIES TO THE PROCEEDINGS The States of California and Nevada, together with the Tahoe Regional Planning Agency (a bistate agency cre- ated by interstate compact), were the appellees in the consolidated proceedings below. The Tahoe Sierra Preser- vation Council was the lead appellant in both of those proceedings. Also appearing as appellants below were several hundred additional individuals, partnerships and corporations. Given their number, these parties are listed in the Appendix to this petition, beginning at page 53a. con ones wc lll ili TABLE OF CONTENTS Page RPUPRPRMAPEM? BW OROMEU NEEDS 6 occ cence ccwesecvivers i FARiigs TO THE PROCEEDINGS ................: il I IE 6 a vb 6b N ns shod bv nevdeeewcnes 1 Ee rere re ere 2 STATUTORY PROVISIONS INVOLVED............. 2 ey RG Bley) | GE ah Sr 4 REASONS FOR GRANTING THE PETITION....... 10 I. REVIEW IS NECESSARY TO RESOLVE A CON- FLICT BETWEEN THE CIRCUIT COURTS OF APPEALS AS TO THE APPROPRIATE STATUTE OF LIMITATIONS TO BE APPLIED IN LITIGA- TION BROUGHT UNDER AN INTERSTATE 8 ee eee re 11 il. THE PETITION RAISES AN IMPORTANT QUESTION OF FEDERAL LAW THAT SHOULD BE SETTLED BY THIS COURT: THE APPROPRIATE STATUTE OF LIMITATIONS TO BE APPLIED IN LITIGATION BROUGHT UNDER INTERSTATE COMPACTS ENACTED PURSUANT TO THE COMPACT CLAUSE..... 16 Ill. THE DECISION BELOW FUNDAMENTALLY MISCONSTRUES AND CONFLICTS WITH THIS COURT’S DECISION IN WILSON V. GAR- CIA CONCERNING THE APPLICABLE STAT- UTE OF LIMITATIONS TO BE APPLIED IN eS ae ae 23 EE ea re 27 a La ae Sane 6 GN The Ninth Circuit also found that continuing to distin- guish those agencies with the power of condemnation (which can appropriately be held liable in damages for inverse condem- nation) from those without such power (immune from liability for inverse condemnation) would “unavoidably conflict with the reasoning of First English.” TSPC I at 1341. 6 “TSPC I” hereinafter refers to the Nevada-side decision by the Ninth Circuit Tahoe Sierra Preserv. v. Tahoe Reg. Planning Agency, 911 F.2d 1331 (9th Cir.1990). bi, aed ds er od 13a and the case appealed from the Eastern District of Cali- fornia on June 10, 1991 (TSPC IJ).7 In TSPC I the Circuit Court held that (1) some claims were unripe; (2) TRPA was not immune from liability for inverse condemnation; and (3) owners of property subject to prohibition against development had a claim for reimbursement of assess- ments independent of any claim for taking of land itself. Specifically, the Court in TSPC I dismissed all claims for declaratory and injunctive relief as being moot in view of TRPA’s subsequent adoption of its 1987 Regional Plan (distinguishing declaratory and injunctive relief as providing no benefit to the plaintiffs as compared to compensatory damages, still of value, for a temporary taking). The Court allowed the plaintiffs to seek damages for deprivation of the plaintiffs’ right to enjoy certain public improvements for which they had previously paid assessments.’ Most important to the matter at hand, by finding that the TRPA was not immune from liability and that a right to compensation for “temporary taking” exists, the Court also reinstated a portion of the Nevada plaintiffs’ claims for just compensation as a result of the 7 “TSPC II” hereinafter refers to the California-side deci- sion of the Ninth Circuit Tahoe Sierra Preserv. v. Tahoe Reg. Plan- ning Agency, 938 F.2d 153 (9th Cir.1991). 8 The Court of Appeals limited this cause of action to assessments actually paid to TRPA. Because no assessments were paid to TRPA in this case, no claims have been raised pursuant to the ruling on this point. TSPC IJ found that property owners are entitled to pursue a refund from the agency that collected the assessments for improvements during a temporary taking. While TRPA did not collect assessments in this case, assessments may have been collected by a local improvement district. 14a alleged regulatory takings. Partnered with this finding was the Circuit Court’s reinstatement of the plaintiffs’ Civil Rights Act claims to the extent they were based upon denial of Just Compensation relating to the alleged regulatory takings. The ruling by the Court of Appeals is complicated however by the affirmation of the District Court’s dis- missals due to ripeness and mootness. With regard to the alleged regulatory takings arising from TRPA’s adoption of its 1984 Plan (Period IJi), Judge Reinhardt found the claims to be unripe, Judge Fletcher found the claims to be moot, and Judge Kozinski in a dissenting opinion, found the claims to be ripe for review. Plaintiffs encourage this Court to consider the Appellate Court’s finding in TSPC II where the position of Judge Kozinski — that the plain- tiffs’ claims as to the 1984 Plan are in fact ripe for review despite the fact that the plaintiffs did not seek to amend the plan - was unanimously adopted. There is no differ- ence in the facts between the Nevada plaintiffs and the California plaintiffs with regard to the 1984 Plan; how- ever, this Court chooses to follow the law-of-the-case doctrine. Despite the inconsistency of the Appellate Court rulings, the per curium opinion in TSPC I dis- missed the claims. This Court is not free to disregard the ruling in TSPC I that ripeness standards preclude the Nevada plaintiffs from pursuing a takings claim pertain- ing to the 1984 Regional Plan. The alternative theory of futility pursued by the plaintiffs is irrelevant in light of the injunction ordered by the Eastern District Court of California during this time and is discussed later in this Order. 15a The Court of Appeals also upheld the dismissal of claims as they pertained to the Nevada Class 1, 2, and 3 plaintiffs for the 26-month period from June 25, 1981 through August 28, 1983 (Period I) because these plain- tiffs did not pursue the available “case-by-case excep- tion.” The Court held that the claims were not ripe and affirmed the dismissal. Plaintiffs’ attempt to now claim that case-by-case review would have been “futile” cannot change the ruling by the Court of Appeals. The futility doctrine is not a new theory created by the Appellate Court. The plaintiffs should have made this argument at the time the claims were being considered by the Court. This Court will not consider cursory and untimely argu- ments on issues that have already been decided. Dis- missal of the claims pertaining to Nevada Class 1, 2, and 3 plaintiffs for the period from June 25, 1981 through August 28, 1983 (Period I) will not be reconsidered. Pursuant to the rulings by the Ninth Circuit in TSPC I and TSPC II and the above discussion, the only claims that may be appropriately included in the Plaintiffs’ First Amended Complaint are limited to Just Compensation for the regulatory taking of property and damages for deprivation of constitutionally-protected civil rights pur- suant to the Federal Civil Rights Act. These claims are further limited by the previous dismissal of allegations arising from Period I as to the Nevada Class 1, 2, and 3 plaintiffs and from Period III as to all the Nevada plain- tiffs. This leaves only Period I as to the SEZ plaintiffs, Period II as to all the plaintiffs, and Period IV as to all the plaintiffs as relevant for further consideration in this case. 16a CASE ON REMAND After receiving permission from this Court, the Nev- ada-side plaintiffs filed their First Amended Complaint on October 28, 1991 (the California-side plaintiffs filed their First Amended Complaint on March 27, 1992). The First Amended Complaint states three claims for relief. The first claim is applicable to the SEZ plaintiffs alleging a regulatory taking of the plaintiffs’ properties resulting from the prohibitions contained in TRPA’s 1984 Plan and predecessor “interim moratoria,”? and continued in force and effect by TRPA’s 1987 Plan. In the second claim for relief, the Class 1, 2, and 3 plaintiffs seek the identical relief. In the third claim for relief, all plaintiffs seek additional damages for deprivation of their Constitu- | tionally-protected civil rights pursuant to the Federal Civil Rights Act. The gravamen of the Complaint is that the TRPA’s regulation, at face value and without refer- | ence to the any of the regulations application to any particular parcel, effects an unconstitutional taking of property. This is to be contrasted with an “as applied” takings claim, in which it is alleged that the particular impact of the regulation upon a given parcel raises an inverse condemnation claim. Facial challenges are appro- priate for disposition by pre-trial motion. See e.g., Key- stone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987). 9 Plaintiffs use “interim moratoria” to include Period I (June 25, 1981 through August 28, 1983 — Ordinance 81-5) and Period II (August 28, 1983 through April 26, 1984 — Resolution 83-21). _ Pare eee ey ae fo gr Tin. Se pets Se atle 17a It is apparent from the First Amended Complaint that the plaintiffs have taken a broad view of the Court’s decisions in TSPC I and TSPC II. The plaintiffs have coupled their understanding of the appellate decisions with a liberal reading of First English, supra and Lucas v. South Carolina Coastal Council, __ U.S. ___, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) to expand their takings claims in the Amended Complaint. Rather than realizing that lim- ited claims, further limited by certain facts, were found to be potentially viable by the Appellate Court, the plaintiffs have made new allegations and ignored the limitations prescribed. In response to the First Amended Complaints, both the TRPA and the State of California filed Motions to Dismiss (documents #140-141 and #145-146). The motion on behalf of California incorporated all of the TRPA’s arguments and TRPA joined the State of California in its Motion to Dismiss. Plaintiffs opposed the Motions and defendants replied. The matter is now ripe for the Court’s decision. A court may grant a motion to dismiss for failure to state a claim on which relief can be granted only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Adult Video Assoc. v. Barr 960 F.2d 781, 784 (9th Cir.1992). A court may only look to the facts alleged in the complaint when deciding whether to grant a 12(b)(6) motion. Id. All material facts alleged in the complaint must be taken as true and construed in the light most favorable to the nonmoving party. Amfac Mortgage Corp. v. Arizona Mall of Tempe 583 F.2d 426, 430 (9th Cir. 1978). However, it is not proper for the Court to assume that 18a “the pleader can prove facts that he has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged.” Associated General Contractors v. California State Council, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983). Keeping in mind the deference which this Court is bound to give to the plaintiffs allegations, each claim will be considered in the context of the relevant time period of the takings claims. Period I (June 25, 1981 —- August 28, 1983 -— Ordinance 81-5) The allegations of a regulatory taking arising from the period of June 25, 1981 through August 28, 1983 (Ordinance 81-5 period) will be discussed first. As dis- cussed above, the plaintiffs’ claims are limited to the SEZ plaintiffs during this period. This Court has previously found, and the Appellate Court affirmed, that due to the availability of case-by-case review with respect too the Class 1, 2, and 3 plaintiffs their claims are not ripe (and can never be ripe because review was never sought while the regulation was in effect). The defendants have raised a legitimate statute of limitations defense. A 60-day stat- ute of limitation is imposed by the Compact for any legal action arising out of any ordinance of the agency. Tahoe Regional Planning Compact (Public Law 96-551, 94 Stat. 3233; Cal.Gov.Code §§ 66800 & 66801; N.R.S. § 277.190 & § 277.200 Art. VI(j)(4)).2° The TRPA took final action to 10 The statute reads in pertinent part: “A legal action aris- ing out of the adoption or amendment of the regional plan or of any ordinance or regulation of the agency, or out of the granting vee rlhy Died alah ARONA AD Denice soe oeee ABS aie 19a enact the ordinance alleged to constitute a facial taking on June 25, 1981. The first complaint was not filed in this case until 1984. Plaintiffs’ efforts to save themselves from the require- ment of filing prompt claims are not persuasive. Some takings do occur gradually and incrementally thereby extending the appropriate time period for filing an inverse condemnation suit until the consequences of the event are fully known. See United States v. Dickinson, 331 U.S. 745, 746-750, 67 S.Ct. 1382, 1383-85, 91 L.Ed. 1789 (1947) (physical taking ultimately took place due to flood- ing caused by Federal Government damming a river - plaintiff permitted to file complaint when flooding dam- age could be determined); Pierpont Inn, Inc. v. State, 70 Cal.2d 282, 74 Cal.Rptr. 521, 449 P.2d 737 (1969) (plaintiff permitted to file complaint after property was appropri- ated for a freeway but prior to completion of construction project). The case at hand arises from a claim against a regula- tory taking. There has been no continuous physical inva- sion of the plaintiffs land culminating in a taking. It was clear from the day Ordinance 81-5 was adopted that development was prohibited as to the SEZ plaintiffs. A facial takings claim based upon Ordinance 81-5 became actionable upon the date that TRPA took final action to enact the ordinance. There is no reason for the plaintiffs’ delay in alleging a regulatory taking as a result of this Ordinance. Moreover, the defendants have not waived or denial of any permit, shall be commenced within 60 days after final action by the agency.” 20a their right to raise this defense. There has been no adverse ruling by any of the Courts regarding the limita- tion of action issue as it pertains to Ordinance 81-5. In fact, during the litigation of this case, the Courts have consistently shown an overt unwillingness to reach deci- sions regarding the statute of limitations issues that had not been raised while alerting the parties and this Court that statute of limitations issues may be relevant. As there were no adverse rulings below, there was no basis for cross appeal and accordingly no waiver of the defense has occurred. “Even if an appellee does not file a cross appeal... he may defend the judgment in his favor with any argument that is supported by the record, regardless of whether it was ignored by the Court.” (9 Moore’s Federal Practice (2d ed. 1992) J 204.11[3] at 4-47). TSPC’s regulatory takings claims arising from Period I (Ordi- nance 81-5) are barred by the 60-day limitation of actions imposed by the Compact and are dismissed. Period II (August 28, 1983-April 26, 1984 — Resolution 83-21) As to the second relevant period, Resolution 83-21 was in effect from August 28, 1983 through April 26, 1984 (the eight-month moratorium). The 60-day statute of lim- itation applies to this period as well. A temporary resolu- tion falls within the scope of the statute of limitation applies to this period as well. A temporary resolution falls within the scope of the statute of limitations pro- vided in the Compact. The Compact expressly states that “any regulation” of the Agency is subject to a 60-day igh et A ta ican i Wi Bia 8 hs a _—e hee ey) 2la statute of limitations.1! There is no logical argument as to why Board Resolution 83-21 would not fall within the scope of this statute. However, the Compact further expresses that any legal actions shall take place 60 days after “final action” by the agency. Resolution 83-21 was temporary in nature — admittedly an interim measure. !? The notion that a “temporary resolution” amounts to “final action” deserves discussion. There is little authority as to what constitutes “final action” on the part of TRPA. Previous discussions have centered around permit-specific disputes. See Cal. Tahoe Regional Planning v. Sahara Tahoe Corp., 504 F.Supp. 751 (D.Nev.1980) (Court held that when TRPA treated a sec- ond application for permit for parking garage as request to reconsider Agency’s previous denial of the request and then denied the request for a rehearing, the Agency took a “final action”); Sederquist v. Tahoe Regional Planning Agency, 652 F.Supp. 341 (D.Nev.1987). (Court held that TRPA’s conditional approval of construction, rather than issuance of final permit, was “final action” within mean- ing of Compact providing for permit expiration three years after date of final action.) 11 See note 10 above. 12 The TRPA Governing Board temporarily suspended issu- ance of permits for projects because a serious legal question arose concerning TRPA’s ability to continue project review and approval beyond August 26, 1983 without having an amended plan in effect. Article V(c) of the Compact required the amended plan to be adopted within one year after the environmental thresholds were established. The environmental thresholds had been established on August 26, 1982. 22a Defendants assert that final action occurs at the time of adoption. Determination of when final action occurred as to the moratorium is crucial because if TRPA’s con- struction is applied, then the plaintiffs are time-barred from any claim of a facial taking during this period. However, if it can be argued that a temporary resolution implementing a moratorium, does not constitute a final action, then the plaintiffs may be able to save this claim. Interpretation given a statute by the agency charged with its administration is entitled to deference from the courts, Thomas v. Peterson, 753 F.2d 754, 762 (9th Cir.1985). It has already been established that the term “final action” is ambiguous. See Sederquist, 652 F.Supp. 341, 345. In the case at hand it could be interpreted to mean the Board’s adoption of Resolution 83-21 or it could be inter- preted to mean the final adoption of the amended plan following the Board’s interim measure. If the court deter- mines that legislation is ambiguous, the question is whether the agency’s interpretation is a reasonable one, consistent with the statute’s overall purpose. Chevron, U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). If TRPA’s interpretation is reasonable, then its interpreta- tion controls. These legal principles are incorporated into the Compact. 1980 Compact, Article VI(j)(5). Despite its temporary nature (8 months) the policy and effect of the Resolution was clear — no development permitted. The resolution was neither ambiguous nor its application inconsistent. The day the Board adopted the Resolution it took final action as to what development could occur prior to the adoption of the 1987 Plan. Fur- ther, finding the adoption of a resolution as final action is 23a consistent with Sederquist, supra where the conditional approval, although an interim measure, was found to constitute final action. Finally, the TRPA’s interpretation of the adoption as “final action” is in accord with the implied purpose of Article VI(j) of the Compact to place a reasonable time-bar on actions. TRPA’s interpretation of “final action” as to the adoption of Resolution 83-21 is reasonable. Consequently, TSPC’s claims based upon Period II Resolution 83-21 are time-barred and dismissed. Period III (April 26, 1984-June 25, 1987 — 1984 Plan and Court Injunction) The third relevant time period (1984 Plan and the court ordered injunction) has been discussed above. Plaintiffs have no valid claims relevant to this time period as they have been previously dismissed by this Court and the Court of Appeals as being unripe. Moreover, the orders of the federal district court for the Eastern District of California enjoining TRPA from implementing the plan prevent TSPC from having a legitimate cause of action with relation to this period. This Court need not address the plaintiffs new assertion — that seeking an amendment to the plan would have been “futile” and therefore the ripeness defense is without merit —- due to the district court’s injunction during this time. California Federal District Court’s orders enjoining TRPA from implement- ing the plan prevent TSPC from having a legitimate cause of action with relation to this period. This Court need not address the plaintiffs new assertion — that seeking an amendment to the plan would have been “futile” and therefore the ripeness defense is without merit — due to 24a the injunction by the District Court of Eastern Califor- nia.!3 The Court of Appeals specifically retained this issue for this Court. “We leave it to the district court to deter- mine whether the intervening injunction prevented the 1984 Plan from causing any harm to the plaintiffs.” TSCP II at 157. TSPC’s taking challenge to the 1984 Regional Plan must fail because that plan was enjoined and never implemented, hence the requisite causation between the 1984 Plan and TSPC’s purported injury is lacking as a matter of law. The injunction ordered by the federal court prevented the 1984 Plan from ever taking effect. TRPA was enjoined from granting any development or building permit. Because the plan was never put into effect it could not have caused a taking. The claim fails for lack of causation. See Carpenter v. Tahoe Regional Planning Agency, 804 F.Supp. 1316 (D.Nev.). TSPC’s claims for relief arising from Period III are dismissed. Period IV (June 25, 1987-present - 1987 Plan) The 1987 Plan encompasses the last relevant time period to be addressed. Claims arising under this plan are also dismissed. The conclusory allegation that the 1987 Plan is merely a continuation of the 1984 Plan and other regulations that allegedly amount to a taking is not persuasive to this Court even in the deferential light the 13 The State of California filed suit against TRPA on April 26, 1984 alleging that the 1984 Plan violated the Compact. Pur- suant to this suit, the federal district court for the Eastern Dis- trict of California ordered a preliminary injunction, preventing TRPA from authorizing any development. The injunction was extended through July 5, 1987. Al Hat Rnsilaiaic he aitlede set Lo AS aha nan sessltean Ain rte BO Vik 25a Court must use in evaluating the plaintiffs claims. This action was originally filed in 1984 long before the 1987 Plan was in effect. Raising allegations against TRPA on the basis of the 1987 Plan runs afoul of the statute of limitations. “An amendment of a pleading relates back to the date of the original pleading when... (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original plead- ing...” Fed.R.Civ.P. Rule 15(c)(2). When a plaintiff attempts to allege an entirely different transaction by amendment, Rule 15(c) will not authorize relation back. 6A. Wright, Miller & Kane, Federal Practice and Procedure § 1497 (2d ed. 1990). The TRPA’s regulatory scheme embodied by the 1987 Plan is “markedly different from the 1984 Plan it replaced.” TSPC I at 1334. As a result, the enlarged lawsuit now brought by TSPC rests on a different factual basis than those claims which survived from the original complaints. Amendments to complaints alleging claims arising from different contracts, different patents and separate violations do not “relate” back to the original complaint. Amendments that merely correct technical deficiencies or expand or modify the facts alleged in the earlier pleading meet the Rule 15(c) test and will relate back. Because the rationale of the relation back rule is to ameliorate the effect of the statute of limitations! rather than to promote the joinder of claims and parties, the standard for determining whether amendments qualify '* The Court notes that the time period for filing such an action is now barred by the 60 day statute of limitation for actions against the 1987 Plan. 26a under Rule 15(c) is not simply an identity of transaction test; although not expressly mentioned in the rule, the courts also inquire into whether the opposing party has been put on notice regarding the claim raised by the amended pleading. Id. In this case the allegations of taking pursuant to. the 1987 Plan do not rest on the same general conduct, transaction or occurrence as the earlier claims. Nor does the fact that plaintiffs were pursuing taking claims in 1984 put the plaintiffs on notice that six years later (and approximately four years after the adop- tion of the plan at issue) an entirely different plan would be attacked as constituting a facial taking. While Rule 15(a) does place an additional burden on the defendants in this case to have filed a separate com- plaint against the TRPA with regard to its 1987 plan, the alternative is to place an additional burden on the plain- tiff — the burden of defending a new claim after 6 years of litigation centered around distinctly different claims and facts. The plaintiffs arguments of inconvenience are well taken; however, they do not weigh heavier than the ratio- nal behind Rule 15. Nor does justice require that this Court give leave to the amendment with regard to the new claims arising from the 1987 Plan. The plaintiffs’ concern that the defendants would have “squealed like stuck pigs” had they (the plaintiffs) sought to file amended complaints while the matter was on appeal presents a colorful image but an unconvincing argument. Requiring the plaintiff to file a separate complaint against the TRPA for the 1987 [sic] does not amount to piecemeal litigation. The 1987 Plan is completely different. It is not merely an amended 1984 Plan without substantive changes (compare with Tollis v. San Bernardino County, 827 27a F.2d 1329 (9th Cir, 1987)) nor is a continuing process of a physical intrusion (compare with United States v. Dickin- son, supra) nor does the 1987 Plan merely add a variance provision to the original statute (compare with Lucas v. South Carolina Coastal Council, supra). The Ninth Circuit by mentioning the 1987 plan in its mootness analysis of certain claims did not open the door for claims arising from the Plan to be included in the Amended Complaints. If anything, the Court’s affirma- tion of the dismissal of claims for declaratory and injunc- tive relief from the 1984 Plan because they were mooted by the 1987 Plan, demonstrates the Courts recognition that an entirely new statutory scheme was in place. A claim based upon an entirely different regulatory plan cannot be added to an existing complaint. The 1987 Plan was developed from discussions lasting over two years in a “consensus building workshop” initiated by TRPA and designed to include the broadest possible range of private and governmental interests and viewpoints. Moreover, the 1987 Plan could not be considered a continuation of the 1984 Plan because the 1984 Plan never went into effect as a result of the District Court of California’s order enjoining the TRPA from implementing the plan. While the Court dismisses the claims arising from the 1987 Plan on the basis of Rule 15 and the time-bar, it is also noted that claims in respect to the 1987 Plan would not be ripe until the plaintiffs avail themselves of the mechanisms in the 1987 Plan (e.g. challenging the IPES Scores, exploration of development transfer, and amend- ment to the plan). Plaintiffs must avail themselves of the options available as a prerequisite to any claim against 28a TRPA. TSPC’s claims based upon the 1987 Plan are dis- missed because they are not properly joined, do not relate back to the 1984 Plan and are now time-barred by the 60- day statute of limitations and are not ripe even if they had been validly asserted. CONCLUSION The Court of Appeals in TSPC I and TSPC II found that a temporary takings claim can exist and should compensated even after the period of the taking has passed. The Circuit Court relied on First English for this finding and now Lucas adds support to such a claim. However, the Circuit Court did not render any decisions as to potential statute of limitations defenses, the effect of the court injunction during the 1984 Plan, or the ripeness or appropriateness of any the claims arising from the 1987 Plan. Plaintiffs attempted to simplify this very com- plex matter by focusing their arguments on liberal read- ings of the two new Supreme Court cases and a broad reading of the Court of Appeals’ limited rulings. Nev- ertheless, plaintiffs claims cannot survive a Motion to Dismiss. As to plaintiffs First Claim for Relief (SEZ plaintiffs), The claim arising from Period I is time-barred and dis- missed. The claim arising from Period II is time-barred and dismissed. The claim arising from Period III lacks the requisite causation and is dismissed. The claim arising from Period IV was made in violation of Fed.R.Civ.P. Rule 15, is time-barred, is not ripe, and is dismissed. As to plaintiffs’ Second Claim for Relief (Class 1, 2, and 3 plaintiffs). The claim arising from Period I was - . . . . Roe or patie tandiabeite BTC BAR ur eh CI pone e,~. ’ On appeal the plaintiffs did not contest the dismissal of the monetary damage claims as to the State of California and Nevada, which had been dismissed based on Eleventh Amend- ment immunity grounds. 6 The Ninth Circuit also found that continuing to distin- guish those agencies with the power of condemnation (which can appropriately be held liable in damages for inverse condem- nation) from those without such power (immune from liability for inverse condemnation) would “unavoidably conflict with the reasoning of First English.” TSPC I at 1341. 7 “TSPC II” hereinafter refers to the California-side deci- sion of the Ninth Circuit Tahoe Sierra Preserv. v. Tahoe Reg. Plan- ning Agency, 938 F.2d 153 (9th Cir.1991). 34a and the case appealed from the District Court of Nevada on August 27, 1990 (TSPC I)8. In TSPC II the Circuit Court held that (1) TRPA was not immune from suit; (2) Claims for damages were not mooted by adoption of new regional plan; and (3) claims for temporary taking were ripe. Specifically, the Court in TSPC II dismissed all claims for declaratory and injunctive relief as being moot in view of TRPA’s subsequent adoption of its 1987 Regional Plan (distinguishing declaratory and injunctive relief as providing no benefit to the plaintiffs as compared to compensatory damages, still of value, for a temporary taking). The Court allowed the plaintiffs to seek damages for deprivation of the plaintiffs’ right to enjoy certain public improvements for which they had previously paid assessments.? Most important to the matter at hand, by finding that TRPA was not immune from liability and that a right to compensation for “temporary taking” exists, the Court also reinstated the California plaintiffs’ claims for just compensation as a result of the alleged regulatory takings. Included in the reinstated claims were those 8 “TSPC I” hereinafter refers to the Nevada-side decision by the Ninth Circuit. Tahoe Sierra Preserv. v. Tahoe Reg. Planning Agency, 911 F.2d 1331 (9th Cir.1990). 9 In TSPC I the Ninth Circuit limited this cause of action to assessments actually paid to TRPA. Because no assessments were paid to TRPA in this case, no claims have been raised pursuant to the ruling on this point. TSPC IJ found that property owners are entitled to pursue a refund from the agency that collected the assessments for improvements during a temporary taking. While TRPA did not collect assessments in this case, assessments may have been collected by a local improvement district. eS thnk KA NR a i Sie Sas Sg gS » 4 Ss 35a claims arising from Period III. Although the Court in TSPC I affirmed the dismissal of these claims to the extent they were not ripe as to the Nevada Plaintiffs, in this case the Court of Appeals held the claims were ripe (stating that Plaintiffs need not seek an amendment to the plan in order to make their claims against the Plan ripe). Partnered with this finding was the Circuit Court’s rein- statement of the plaintiffs’ Civil Rights Act claims to the extent they were based upon denial of Just Compensation relating to the alleged regulatory takings. Pursuant to the rulings by the Ninth Circuit in TSPC II, the only claims that may be appropriately included in the Plaintiffs’ First Amended Complaint are limited to Just Compensation for the regulatory taking of property and damages for deprivation of constitutionally- protected civil rights pursuant to the Federal Civil Rights Act. After receiving permission from this Court, the Cali- fornia-side plaintiffs filed their First Amended Complaint on March 27, 1992 (the Nevada-side plaintiffs filed their First Amended Complaint On October 28, 1991). The First Amended Complaint states three claims for relief. The first claim is applicable to the SEZ plaintiffs alleging a regulatory taking of the plaintiffs’ properties resulting from the prohibitions contained in TRPA’s 1984 Plan and predecessor “interim moratoria,”!° and continued in force and effect by TRPA’s 1987 Plan. In the second claim for 10 Plaintiffs use “interim moratoria” to include Period | (June 25, 1981 through August 28, 1983 —- Ordinance 81-5) and Period II (August 28, 1983 through April 26, 1984 - Resolution 83-21). 36a relief, the Class 1, 2 and 3 plaintiffs seek the identical relief. In the third claim for relief, all plaintiffs seek additional damages for deprivation of their Constitu- tionally-protected civil rights pursuant to the Federal Civil Rights Act. The gravamen of the Complaint is that the TRPA’s regulation, at face value and without refer- ence to the [sic] any of the regulations application to any particular parcel, effects an unconstitutional taking of property. This is to be contrasted with an “as applied takings claim, in which it is alleged that the particular impact of the regulation upon a given parcel raises an inverse condemnation claim. Facial challenges are appro- priate for disposition by pre-trial motion. See e.g., Key- stone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987). It is apparent from the First Amended Complaint that the plaintiffs have taken a broad view of the Court’s decisions in TSPC I and TSPC II. The plaintiffs have coupled their understanding of the appellate decisions with a liberal reading of First English, supra and Lucas v. South Carolina Coastal Council, ____ U.S. ___, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) to expand their takings claims in the Amended Complaint. Rather than realizing that lim- ited claims, further limited by certain facts, were found to be potentially viable by the Court of Appeals, the plain- tiffs have made new allegations. and ignored the limita- tions prescribed. In response to the First Amended Complaints, both the TRPA and the State of California filed Motions to Dismiss (documents # 104-141 and # 145-146). The motion on behalf of California incorporated all of the Riu tSIRIR HM: eS x 37a TRPA’s arguments and TRPA joined the State of Califor- nia in its Motion to Dismiss. Plaintiffs opposed the Motions and defendants replied. The matter is now ripe for the Court’s decision. A court may grant a motion to dismiss for failure to state a claim on which relief can be granted only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Adult Video Assoc. v. Barr 960 F.2d 781, 784 (9th cir. 1992). A court may only look to the facts alleged in the complaint when deciding whether to grant a 12(b)(6) motion. Id. All material facts alleged in the complaint must be taken as true and construed in the light most favorable to the nonmoving party. Amfac Mortgage Corp. v. Arizona Mall of Tempe 583 F.2d 426, 430 (9th cir. 1978). However, it is not proper for the Court to assume that “the pleader can prove facts that he has not alleged or that the defendants have violated the. . . . laws in ways that have not been alleged.” Associated General Contractors v. California State Council, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983) Keeping in mind the deference which this Court is bound to give to the plaintiffs’ allegations, each claim will be considered in the context of the relevant time period of the takings claims. Period I (June 25, 1981 — August 28, 1983 - Ordinance 81-5) The allegations of a regulatory taking arising from the period of June 25, 1981 through August 28, 1983 (Ordinance 81-5 period) will be discussed first. The defendants have raised a legitimate statute of limitations 38a defense. A 60-day statute of limitation in imposed by the Compact for any legal action arising out of any ordinance of the agency. Tahoe Regional Planning Compact (Public Law 96-551, 94 Stat. 3233; Cal.Gov.Code §§ 66800 & 66801; N.R.S. § 277.190 & § 277.200 Art. VI(j)(4)).1! The TRPA took final action to enact the ordinance alleged to consti- tute a facial taking on June 25, 1981. The first complaint was not filed in this case until 1984. Plaintiffs’ efforts to save themselves from the require- ment of filing prompt claims are not persuasive. Some takings do occur gradually and incrementally thereby extending the appropriate time period for filing an inverse condemnation suit until the consequences of the event are fully known. See United States v. Dickinson, 331 U.S. 745, 746-750, 67 S.Ct. 1382, 1383-1386, 91 L.Ed. 1789 (1947) (physical taking ultimately took place due to flood- ing caused by Federal Government damming a river - plaintiff permitted to file complaint when flooding dam- age could be determined); Pierpont Inn, Inc. v. State, 70 Cal.2d 282, 74 Cal.Rptr. 521, 449 P.2d 737 (1969) (plaintiff permitted to file complaint after property was appropri- ated for a freeway but prior to completion of construction project). The case at hand arises from a claim against a regula- tory taking. There has been no continuous physical inva- sion of the plaintiffs’ land culminating in a taking. It was 11 The statute reads in pertinent part: “A legal action aris- ing 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.” Tae ee ee LRPE ENR rei ng ANG MANE: UM rt reg 39a clear from the day Ordinance 81-5 was adopted that development was prohibited as to the SEZ plaintiffs. A facial takings claim based upon Ordinance 81-5 became actionable upon the date that TRPA took final action to enact the ordinance. There is no reason for the plaintiffs’ delay in alleging a regulatory taking as a result of this Ordinance. Moreover, the defendants have not waived their right to raise this defense. There has been no adverse ruling by any of the Courts regarding the limita- tion of action issue as it pertains to Ordinance 81-5. In fact, during the litigation of this case, the Courts have consistently shown an overt unwillingness to reach deci- sions regarding the statute of limitations issues that had not been raised while alerting the parties and this Court that statute of limitations issues may be relevant. As there were no adverse ruling below, there was no basis for cross appeal and accordingly no waiver of the defense has occurred. “Even if an appellee does not file a cross appeal . . . he may defend the judgment in his favor with any argument that is supported by the record, regardless of whether it was ignored by the Court. (9 Moore’s Fed- eral Practice (2d ed. 1992) ¥ 204.11[3] at 4-47). TSPC’s regulatory takings claims arising from Period I (Ordi- nance 81-5) are barred by the 60-day limitation of actions imposed by the Compact and are dismissed. Period II (August 28, 1983-April 26, 1984 - Resolution 83-21) As to the second relevant period, Resolution 83-21 was in effect from August 28, 1983 through April 26, 1984 (the eight-month moratorium). The 60-day statute of lim- itation applies to this period as well. A temporary resolu- tion falls within the scope of the statute of limitations 40a provided in the Compact. The Compact expressly states that “any regulation” of the Agency is subject to a 60-day statute of limitations.!? There is no logical argument as to why Board Resolution 83-21 would not fall within the scope of this statute. However, the Compact further expresses that any legal actions shall take place 60 days after “final action” by the agency. Resolution 83-21 was temporary in nature — admittedly an interim measure.}% The notation that a “temporary resolution” amounts to “final action” deserves discussion. There is little authority as to what constitutes “final action” on the part of TRPA. Previous discussions have centered around permit-specific disputes. See Cal. Tahoe Regional Planning v. Sahara Tahoe Corp., 504 F.Supp. 751 (D.Nev.1980) (Court held that when TRPA treated a sec- ond application for permit for parking garage as request to reconsider Agency’s previous denial of the request and then denied the request for a rehearing, the Agency took a “final action”); Sederquist v. Tahoe Regional Planning Agency, 652 F.Supp.*341 (D.Nev.1987). (Court held that TRPA’s conditional approval of construction, rather than 12 See note 11 above. 13 The TRPA governing Board temporarily suspended issu- ance of permits for projects because a serious legal question arose concerning TRPA’s ability to continue project review and approval beyond August 26, 1983 without having an amended plan in effect. Article V(c) of the Compact required the amended plan to be adopted within one year after the environmental thresholds were established. The environmental thresholds had been established on August 26, 1982. ae . owe t EN ROE viscid ee AAS ate one loads sv Ack 3 Ee at ‘2 ica - % % 4la issuance of final permit, was “final action” within mean- ing of Compact providing for permit expiration three years after date of final action.) Defendants assert that final action occurs at the time of adoption. Determination of when final action occurred as to the moratorium is crucial because if TRPA’s con- struction is applied, then the plaintiffs are time-barred from any claim of a facial taking during this period. However, if it can be argued that a temporary resolution implementing a moratorium, does not constitute a final action, then the plaintiffs may be able to save this claim. Interpretation given a statute by the agency charged with its administration is entitled to deference from the courts, Thomas v. Peterson, 753 F.2d 754, 762 (9th Cir.1985). It has already been established that the term “final action” is ambiguous. See Sederquist, 652 F.Supp. 341, 345). In the case at hand it could be interpreted to mean the Board’s adoption of Resolution 83-21 or it could be inter- preted to mean the final adoption of the amended plan following the Board’s interim measure. If the court deter- mines that legislation is ambiguous, the question is whether the agency’s interpretation is a reasonable one, consistent with the statute’s overall purpose. Chevron, U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-843, 104 S.Ct. 2778, 2781-2782, 81 L.Ed.2d 694 (1984). If TRPA’s interpretation is reasonable, then its interpretation controls. These legal principles are incor- - porated into the Compact. 1980 Compact, Article VI(j)(5). Despite its temporary nature (8 months) the policy and effect of the Resolution was clear — no development permitted. The resolution was neither ambiguous nor its 42a application inconsistent. The day the Board adopted the Resolution it took final action as to what development could occur prior to the adoption of the 1987 Plan. Fur- ther, finding the adoption of a resolution as final action is consistent with Sederquist, supra where the conditional approval, although an interim measure, was found to constitute final action. Finally, the TRPA’s interpretation of the adoption as “final action” is in accord with the implied purpose of Article VI(j) of the Compact to place a reasonable time-bar on actions. TRPA’s interpretation of “final action” as to the adoption of Resolution 83-21 is reasonable. Consequently, TSPC’s claims based upon Period II Resolution 83-21 are time-barred and dismissed. Period III (April 26, 1984-June 25, 1987 - 1984 Plan and Court Injunction) The third relevant time period when the (1984 Plan and the Court Ordered Injunction were in effect). The Court of Appeals held that claims arising from this period are ripe for review. However, the orders of the federal district court for the Eastern District of California enjoining TRPA from implementing the plan prevent TSPC from having a legitimate cause of action with rela- tion to this period. This Court need not address the plaintiffs new assertion — that seeking an amendment to the plan would have been “futile” and therefore the ripeness defense is without merit — due to the injunction by the federal court.!4 14 The State of California filed suit against TRPA on April 26, 1984 alleging that the 1984 Plan violated the Compact. Pur- suant to this suit, the federal district court for the Eastern Dis- trict of California ordered a preliminary injunction, preventing 43a The Court of Appeals specifically retained this issue for this Court. “We leave it to the district court to deter- mine whether the intervening injunction prevented the 1984 Plan from causing any harm to the plaintiffs.” TSCP II at 157. TSPC’s taking challenge to the 1984 Regional Plan must fail because that plan was enjoined and never implemented, hence the requisite causation between the 1984 Plan and TSPC’s purported injury is lacking as a matter of law. The injunction ordered by federal court prevented the 1984 Plan from ever taking effect. TRPA was enjoined from granting any development or building permit. Because the plan was never put into effect it could not have caused a taking. The claim fails for lack of causation. See Carpenter v. Tahoe Regional Planning Agency, 804 F.Supp. 1316 (D.Nev. 1992). TSPC’s claims for relief arising from Period III are dismissed. Period IV (June 25, 1987-present — 1987 Plan) The 1987 Plan encompasses the last relevant time period to be addressed. Claims arising under this plan are also dismissed. The conclusory allegation that the 1987 Plan is merely a continuation of the 1984 Plan and other regulations that allegedly amount to a taking is not persuasive to this Court even in the deferential light the Court must use in evaluating the plaintiffs claims. This action was originally filed in 1984 long before the 1987 Plan was in effect. Raising allegations against TRPA on the basis of the 1987 Plan runs afoul of the statute of limitations. “An TRPA from authorizing any development. The injunction was extended through July 5, 1987. 44a amendment of a pleading relates back to the date of the original pleading when . . . (2) the claim or defense asserted in the amended pleading arose out of the con- duct, transaction or occurrence set forth or attempted to be set forth in the original pleading .. . ” Fed.R.Civ.P. Rule 15(c)(2). When a plaintiff attempts to allege an entirely different transaction by amendment, Rule 15(c) will not authorize relation back 6A. Wright, Miller & Kane, Federal Practice and Procedure § 1497 (2d ed. 1990). The TRPA’s regulatory scheme embodied by the 1987 Plan is “markedly different from the 1984 Plan it replaced.” TSPC I at 1334. As a result, the enlarged law- suit now brought by TSPC rests on a different factual basis than those claims which survived from the original complaints. Amendments to complaints alleging claims arising from different contracts, different patents and separate violations do not “relate” back to the original complaint. Amendments that merely correct technical deficiencies or expand or modify the facts alleged in the earlier pleading meet.the Rule 15(c) test and will relate back. Because the rationale of the relation back rule is to ameliorate the effect of the statute of limitations!> rather than to promote the joinder of claims and parties, the standard for determining whether amendments qualify under Rule 15(c) is not simply an identity of transaction test; although not expressly mentioned in the rule, the courts also inquire into whether the opposing party has 'S The Court notes that the time period for filing such an action is now barred by the 60 day statute of limitation for actions against the 1987 Plan. 45a been put on notice regarding the claim raised by the amended pleading. Id. In this case the allegations of taking pursuant to the 1987 Plan do not rest on the same general conduct, transaction or occurrence as the earlier claims. Nor does the fact that plaintiffs were pursuing taking claims in 1984 put the plaintiffs on notice that six years later (and approximately four years after the adop- tion of the plan at issue) an entirely different plan would be attacked as constituting a facial taking. While Rule 15(a) does place an additional burden on the defendants in this case to have filed a separate com- plaint against the TRPA with regard to its 1987 plan, the alternative is to place an additional burden on the plain- tiff — the burden of defending a new claim after 6 years of litigation centered around distinctly different claims and facts. The plaintiffs’ arguments of inconvenience are well taken; however, they do not weigh heavier than the ratio- nal behind Rule 15. Nor does justice require that this Court give leave to the amendment with regard to the new claims arising from the 1987 Plan. The plaintiffs’ concern that the defendants would have “squealed like stuck pigs” had they (the plaintiffs) sought to file amended complaints while the matter was on appeal presents a colorful image but an unconvincing argument. Requiring the plaintiff to file a separate complaint against the TRPA for the 1987 does not amount to piecemeal litigation. The 1987 Plan is completely different. It is not merely an amended 1984 Plan without substantive changes (compare with Tollis v. San Bernardino County, 827 F.2d 1329 (9th Cir. 1987)) nor is a continuing process of physical intrusion (compare with United States v. Dickin- son, supra) nor does the 1987 Plan merely add a variance 46a provision to the original statute (compare with Lucas v. South Carolina Coastal Council, supra). The Ninth Circuit by mentioning the 1987 plan in its mootness analysis of certain claims did not open the door for claims arising from the Plan to be included in the Amended Complaints. If anything, the Court’s affirma- tion of the dismissal of claims for declaratory and injunc- tive relief from the 1984 Plan because they were mooted by the 1987 plan, demonstrates the Court’s recognition that an entirely new statutory scheme was in place. A claim based upon an entirely different regulatory plan cannot be added to an existing complaint. The 1987 Plan was developed from discussions lasting over two years in a “consensus building workshop” initiated by TRPA and designed to include the broadest possible range of private and governmental interests and viewpoints. Moreover, the 1987 plan could not be considered a continuation of the 1984 plan because the 1984 plan never went into effect as a result of the District Court of California’s order enjoining the TRPA- from implementing the plan. While the Court dismisses the claims arising from the 1987 Plan on the basis of Rule 15 and the time-bar, it is also noted that claims in respect to the 1987 Plan would not be ripe until the plaintiffs avail themselves of the mechanisms in the 1987 Plan (e.g. challenging the IPES Scores and exploration of development transfer). Plain- tiffs must avail themselves of the options available as a prerequisite to any claim against TRPA. Although the Court of Appeals in TSPC II did find that it is not neces- sary to seek amendment to a plan in order to make a claim against such plan ripe, it did not hold that plaintiffs can merely ignore all mechanisms available. TSPC’s 47a claims based upon the 1987 Plan are dismissed because they are not properly joined, do not relate back to the 1984 Plan and are now time-barred by the 60-day statute of limitations and are not ripe even if they had been validly asserted. CONCLUSION The Court of Appeals in TSPC I and TSPC II found that a temporary takings claim can exist and should compensated even after the period of the taking has passed. The Circuit Court relied on First English for this finding and now Lucas adds support to such a claim. However, the Circuit Court did not render any decisions as to potential statute of limitations defenses, the effect of the court injunction during the 1984 Plan, or the ripeness or appropriateness of any [sic] the claims arising from the 1987 Plan. Plaintiffs attempted to simplify this very com- plex matter by focusing their arguments on liberal read- ings of the two new Supreme Court cases and a broad reading of the Court of Appeals’ limited rulings. Nev- ertheless, plaintiffs’ claims cannot survive a Motion to Dismiss. As to plaintiffs’ First Claim for Relief (SEZ plaintiffs), the claim arising from Period I is time-barred and dis- missed. The claim arising from Period II is time-barred and dismissed. The claim arising from Period III lacks the requisite causation and is dismissed. The claim arising from Period IV was made in violation of Fed.R.Civ.P. Rule 15, is time-barred, is not ripe, and is dismissed. As to plaintiffs’ Second Claim for Relief (Class 1, 2, and 3 plaintiffs), the claim arising from Period I is time- 48a barred and dismissed. The claim arising from Period II is time-barred and dismissed. The claim arising from Period III lacks the requisite causation and is dismissed. The claim arising from Period IV was made in violation of Fed.R.Civ.P. Rule 15, is time-barred, is not ripe and is dismissed. As to plaintiffs’ Third Claim for Relief (SEZ and Class 1, 2, and 3 plaintiffs), the claim was limited to the extent it was based on the claims of denial of Just Compensa- tion. No basis for the claim exists in light of the dismissal of both claims One and Two as to Periods I, II, III and IV. Claim Three is dismissed. IT IS, THEREFORE, HEREBY ORDERED that defen- dants’ Motion to Dismiss Plaintiffs’ First Amendment Complaint (document #135a) is GRANTED. The Clerk shall enter judgement accordingly. 49a UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT "THE TAHOE SIERRA ) PRESERVATION COUNCIL, _ ) : INC., et al., ) No. 93-15113 : Plaintiff-Appellant, ) D.C. No. : CV-84-00257-ECR | THE TAHOE REGIONAL _ ? | PLANNING AGENCY, et al., : Defendant-Appellee. ) d ) : THE TAHOE SIERRA ) é PRESERVATION COUNCIL, ) No. 93-15114 : INC., et al., ) D.C. No. ; Plaintiff-Appellant, CV-84-00257-ECR ¥ | THE TAHOE REGIONAL ) (Filed Nov. 2, 1994) PLANNING AGENCY, et al., : Defendant-Appellee. ) ) | Before: NOONAN, and T.G. NELSON, Circuit Judges, EZRA," District Judge ; The panel as constituted in the above case has voted to deny the petition for rehearing. Judges Noonan and | _ Nelson have voted to reject the suggestion for rehearing 4 en banc, and Judge Ezra so recommends. *The Honorable David A. Ezra, United States District ata for the District of Hawaii, sitting by designation. 50a The full court has been advised of the suggestion for en banc rehearing, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed. R. App. P. 35(b). The petition for rehearing is denied, and the sugges- tion for a rehearing en banc is rejected. Te oe eS iy Ames MID cose MAS ated ee 5la JUDGMENT UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NO. 93-15113 CT/AG#: CV-90-00098-ECR CT/AG#: CV-84-00257-ECR THE TAHOE SIERRA PRESERVATION COUNCIL, INC. et al,. 4 Plaintiff-Appellant v. THE TAHOE REGIONAL PLANNING AGENCY, et al. Defendant-Appellee NO. 93-15114 CT/AG#: CV-92-00098-ECR CT/AG#: CV-84-00257-ECR THE TAHOE SIERRA PRESERVATION COUNCIL, INC., et al,. Plaintiff-Appellant V. THE TAHOE REGIONAL PLANNING AGENCY, et al.. Defendant-Appellee (Filed Nov. 15, 1994) APPEAL FROM the United States District Court for the District of Nevada (Reno). THIS CAUSE came on to be heard on the Transcript of the Record from the United States District Court for the District of Nevada (Reno) and was duly submitted. 52a ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this Court, that the judgment of the said District Court in this cause be, and hereby is AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Filed and entered August 10, 1994. 53a ADDITIONAL PARTIES TO THE PROCEEDINGS (SUPREME COURT RULE 14.1(b)) BRUCE A. AMES and JUDITH M. AMES; LAURA L. ANDERSON and JAMES E. ANDERSON; ALFRED J. ANTONINI; CAROLYN J. APPLEBY; EDWARD ARRI and BARBARA ARRI; GEORGE P. ASCHE and PRISCILLA J. ASCHE; LEONARD W. ASCHER and ADELINE H. ASCHER; ALPINE INVESTMENT: NICK BADAMI; WES BALLARD; M.A. BEHR and ESTHER M. BEHR, CLARENCE C. BENEDICT; MAX V. BENTLEY and MINNIE R. BENTLEY: LEROY G. BLACK; RICHARD A. BLASCO and AIDA M. BLASCO; ARLETTE I. BROWN; ARTHUR C. BYSTROM; ALLAN F. CASE and TERUKO CASE; DON N. CHOATE and LORRAINE E. CHOATE; EDWARD W. CISLO, JR. and LA VERNE C. CISLO; JAMES D. CLEMENT; ROBERT D. COLCLAZIER; JAMES R. COMPTON; CARL D. COOK; DOROTHY MAE COOK; HAROLD F. CORNELIUS; JOAN COSTA; DONALD COTTEN; OLGA R. CROSETTI; ALAN W. DAGG; GWENDOLYN IONE DAY; EDDY K. DAYNE and ANNE M. DAYNE; RICHARD DEFENBAUGH and TERESA DEFENBAUGH; JOHN J. DESTEFANO: JESS R. DETEVIS and DIANE DETEVIS; ROBERT E. DIXON and JUDITH E. DIXON; STEVEN N. DOLIN and MARY T. DOLIN; MARILYN T. DURBIN; KENNETH W. EBERLE and BETTY L. EBERLE; WILLIAM A. EDWARDS, JR. and FRANCES M. EDWARDS; ANDRE YANN EGASSE; RONALD F. ELIOFF and DENNE M. ELIOFF; J. ROY ELMS and ELIZABETH D. ELMS; NEALE M. ENSIGN and CHRISTINA H. ENSIGN: SONIA D. ERICKSON PETER L. FAVRO; BEN H. FERGUSON; DEREK FERRIERA and DELORES FERRIERA; MOREY B. FLEMING and DOROTHY R. FLEMING; WILLIAM J. FOLEY and SHIRLEY J. FOLEY; DOUGLAS H. FORD; FRANK A. FOTI and ROSE A. FOTI; JUDITH ANN FRIEDMAN; W.C. FROELICH, INC.; CLIFFORD A. FROST and 54a LORRAINE L. FROST; MOSES D. GARAY and ROSE GARAY; FRANK M. GARCIA; LAURA E. GARCIA; F.W. GASSER and ROSE GASSER; LOUIS GEORGE and ELIZABETH GEORGE; ANNA F. GERACI and SALVATORE GERACI; ERNEST O. GERMANN and VIRGINE M. GERMANN; CHRISTOPHER P. GERSHEL and SHARON A. GERSHEL; WILLIAM L. GILL; KURT A. GRAF and NELLIE O. GRAF; ROBERT U. GRANT CIVIL ENGINEERING CO., INC.; ROGER DALE GRESHAM; RICHARD H. GUZMAN and CLAUDIA D. GUZMAN; G.E.M. DEVELOPMENT, INCORPORATED; DAN HAMMON and SHERRIE HAMMON; CHARLES S. HANSON, JR. and VIRGINIA R. HANSON; WILSON L. HARRELL; DAN M. HAUSERMAN; HELEN L. HEDRICK; WAYNE F. HESS and LORRAINE E. HESS; DOUGLAS J. HINDS and MARIAN O. HINDS; J.C. HINTON and LA VAUN E. HINTON; DONALD I. HITT; LOREN HOLMWOOD; DONNA IVY; CARLTON S. JAMES; JOHN JAVORSKY and HELEN JAVORSKY; K.D. JEFFERSON and WINNIFRED A. JEFFERSON; EDWARD N. JELLINS and JANET L. JELLINS; RUDOLPH JOHNSON and PATRICIA JOHNSON; ARNE JORGENSEN; VINCENT S. KEELE and TEDDYANNA P. KEELE; ROY KERTON and LADONNA KERTON; MIKLOS J. KISIDAY and VALIRIA E. KISIDAY; VIRGINIA J. KOTECKI; PETER LANGE; OLAF O. LARSON; CHARLES W. LEW; ROBERT E. LIVESAY and FRANCES M. LIVESAY; HENRY G. LOUIE and LOUISE LOUIE; IAN D. MACGREGOR; MELVIN J. MADDEN and RUTH L. MADDEN; MARIO A. MANDOLI and ALICE M. MANDOLI; ANTHONY JOHN MARAN; DAN H. MARSHALL; LEONARD MAYRISCH, JR.; EDWARD J. MCCARTHY; HALL B. MC ELREE and GEORGETTA B. MC ELREE; FRANK J. MERRITT and SHARON M. MERRITT; HOWARD A. MILLER and ANTOINETTA R. MILLER; ANKICA MILOSAVLJEVIC; CHARLES S. MITCHELL; CARL V. MODUGNO; ERNESTINE H. 55a MOORE; ANDREA C. MONIZ; ARTHUR L. MONTERO; HOWARD V. MORE; DEAN L. MORGAN and DENA M. MORGAN; ANATOLE J. MOSKOLENKO; EMIL A. NECHVATAL and BERNICE M. NECHVATAL; JOHN L NEWBILL and ANITA L. NEWBILL; CONSTANCE NOIA; STEPHEN L. NORRIS and JACQUELINE NORRIS; PETER PANOS and SOPHIA PANOS; PAUL PAULSON and MARILYN PAULSON; EDDIE R. PEDERSEN and DORIS J. PEDERSEN; MERLIN A. PORTER and FERN K. PORTER; PAUL DAVID PORTER, LUCILLE PRATHER; RICHARD LEE PRITCHETT and VIRGINIA RUTH PRITCHETT; FRANK A. QUADROS and FRANCES M. QUADROS; WILLIAM R. RAMSEY and LINDA R. RAMSEY; RUDY REGALADO and JOSEPHINE M. REGALADO; SARAH REYNOLDS and SARGENT REYNOLDS; ROBERT W. RIEB; QUENTIN H. RINK; GEORGE R. ROBINSON; ROCKY RIDGE PROPERTIES; LARRY D. RUDY; EUGENE SAKAI and BETTY SAKAI; JOHN G. SANCHEZ and MARY M. SANCHEZ; E.S. SARRO and ELEANOR M. SARRO; CHARLES OLIVER SASS; PATRICK N. SATALINO; DONALD E. SAUNDERS and GWEN SAUNDERS (DECEASED); FREDERICK SCHULZ; DAVID J. SHERDEN and SHARON L. SHERDEN;; SEIJI SHIBA; BRUCE E. SIMKINS; J. ROCKWELL SMITH and PATRICIA SMITH; BERTRAM S. SOLOMON and SYLVIA M. SOLOMON; MARK THOMAS SPRAGGINS; EDWARD K. STEARNS; FREDERICK A. STREIB and ROSEMARY STREIB; SUGARPINE INVESTMENTS, INC.; A.J. SULME; DONALD P. SWAN; TAHOE APLINE PROPERTIES LTD.; WILLIAM E. THACKREY and SYLVIAN E. THACKREY; LORENE THOMAS; LINDA A. THOMPSON and ALLAN J. THOMPSON; ROBERT E. TOLBERT and IRENE TOLBERT; FRANK W. TRABUCCO and MARY S. TRABUCCO; JAMES R. TREMBATH; DONALD PAUL TURNER and DORIS A. 56a TURNER; U-HAUL CO. OF SACRAMENTO; NEALAND R. UNDERWOOD and DELLA UNDERWOOD; RON UHARRIET; ROBERT URSO; RICHARD G. VENTRESCO and DARLEEN P. VENTRESCO; NORBERT A. WALZ, SR.; CAROLE A. WARD; WEST BAY ENTERPRISES; LAMBERT P. WILLIE; ROBERT H. WILLIAMS; WOODROW H. WILSON and BARBARA C. WILSON; JOHN A. WOLLMAN; ROBERT C. WORKS and PATRICIA W. WORKS; GRACE YA-CHIN LIN PAN; PETER I. YAMAMOTO and MIDORI M. YAMAMOTO; ENRIQUE J. ZOLLNER (DECEASED) and PILAR FERNANDEZ ZOLLNER; THEODORE CAROL ZSUTTY and MARIE ROSE ZSUTTY; VIRGINIA R. ZUCK; and JEFFREY G. ZYBURA and LANA R. ZYBURA. RICHARD A. ALLISON; ALPINE INVESTMENT CO., LTD.; AMCO, INC., JEFFREY B. ANDERSEN and BETH C. ANDERSEN; PETER J. ANDERSEN and JANET I. ANDERSEN; DONALD F. ARCHIBALD and VICTORIA ARCHIBALD; JEAN L. ATHERTON; AIR CONTINENTAL JET CHARTER, INC.; DAVID E. BAKER and MAXINE A. BAKER; JOHN H. BAKER; PIERINO C. BARENGO; JAMES E. BATEMAN and CHERYL J. BATEMAN; VINCENT A. BAUER and ALICE R. BAUER; JUNE F. BECKLER; DERRIL D. BERGT and PATRICIA M. BERGT; H.I. BIRR, III; LEROY G. BLACK and IDA B. BLACK; JEROME O. BLOMBERG; CONSTANCE BOUCHER; JOHN FRANKLIN BOYDSTON and JEAN ANNE BOYDSTON; LOUIS G. BRENNAN and CYNTHIA B. BRENNAN; ROBERT BRIDE; HARRIS J. BUCHBINDER; SAM CAMHI and LILLIAN A. CAMHI; MAUREEN B. CASSIDY; CAVE ROCK ESTATES, A GENERAL PARTNERSHIP; WILLIAM M. 57a CHARNEY and SUSAN W. CHARNEY: TERRY BRADLEY CLARKE; GEORGE B. CLIFFORD; WILLIAM G. COLLINS, JR. and BEVERLY R. COLLINS; THOMAS F. COMBS; JAMES A. CONE and BEVERLY J. CONE; JOSEPH J. COOKE; PATRICIA DEAL; ROBERT DEMELLO; JAMES J. DORST and BEVERLY ANN DORST; JOSEPHINE A. DUDEK and MICHAEL N. DUDEK; WIACZESLAW DUSS and VERNA DUSS; JAMES W. EHRENBURG and PHYLLIS C. EHRENBURG; SARAH E. ERLACH; JAN if ERTESZEK; DONALD L. EVERINGHAM; GAYLE FISHER; MARIE G. GARLAND; HARRY F. GETZ and BETTY J. GETZ; RUSSEL R. GOEBEL; FRED R. GOLISH and BEVERLY A. GOLISH; THOMAS S. GOTO and HIDEKO GOTO; LYNN R. GRADY: BERT GRAFTON, JR., RICHARD F. GRAY and FAYE FE. GRAY; GREAT CALIFORNIA GARY; RICHARD A. GRISWOLD and MADELINE C. GRISWOLD; ROBERT V. HALE and MERLA J. HALE; WILLIAM L. HANE: JACK L. HARE and LAVINA L. HARE; KENNETH J. HARRINGTON; THOMAS A. HASLETT and STELLA M. HASLETT; WILLIAM J. HAVLEK and LEA M. HAVLEK; STEVEN J. HAYDEN and ANN HAYDEN; DENNIS L. HECKERSON; IRA W. HELGREN and CLAYTON E. HELGREN; ROBERT L. HELMS; LARRY D. HENRY; JAMES S. HETHERINGTON and AUDREY O. HETHERINGTON; HAROLD ZANE HEWITT and RUTH B. HEWITT; THOMAS HILL; MALCOLM C. HODGE; WILLIE E. HORNE and LATRICIA J. HORNE; HOSFORD CORPORATION; ESTATE OF EDGARD M. HOWARD; HUTTON ASSOCIATES; RALPH W. INCE; INCLINE LAKE CORPORATION; ROBERT MARSHALL JELDERKS; DANIEL E. JOHNSON and MARGARET R. JOHNSON; LLOYD O. JOHNSON; RAYMOND O. JOHNSON and CYNTHIA JOHNSON; LAWRENCE E. KATELHUT and VANESSA ANNE KATELHUT; VINCENT S. KEELE and 58a TEDDYANNA P. KEELE; GEORGE A. KELLNER; WILLIAM J. KELLY; DONALD B. KEOWN; WILLIAM J. KERRIGAN and JODY KERRIGAN; PEARL S. KISHIMOTO; KEITH KLEIN; VALENTINE F. KLEIN and VALERIE A. KLEIN; POLLY W. KLINE; BARRY L. KRAUSS and JUDITH KRAUSS; TODD KRUEGER and NANCY KRUEGER; ESTHER B. LANGHAM; LEWIS A. LARSEN and FERNE J. LARSEN; WALTER W. LATIMER and ULA E. LATIMER; JEFFREY C. LAUGHLIN and VIBEKE A. LAUGHLIN; CHELTON LEONARD and PETER C. LEONARD; DON LEONARD; BERNICE LINDBERG; RONALD E. LIPORI; JOSEPH A. LUNNY, JR. and JOAN M. LUNNY; PAULETTE L. LUTJENS, ET AL.; ALLAN D. LYNN; DUANE E. MACK; GORDON MACLEAN; THERESA B. MALLEY; STANLEY L. MARTIN and LOUISE A. MARTIN; J. MCBRIDE; PATRICK MARK MAGAREE; SIMOS MICHAELIDES and VIRGINIA MICHAELIDES; ROBERTA W. MOHLER; MERILYN MORRISON; LEON J. MOSS and CAROL L. MOSS (and DON E. MOSS and CHARLENE L. MOSS); KATHY MULLIGAN; SUE M. MYERS; PATRICIA NADING; JOHN ¥. NASH and MARY G. NASH; HILMER C. NELSON and LOUISE K. NELSON; MILTON NELSON and CECELIA NELSON; DAVID O. NERGER and SHIRLEY R. NERGER; KENNETH R. NORTON; MYRL A. NYGREN and MAE NYGREN; WILLIAM O’BRIEN and DINAH O’BRIEN; DORIS G. OLDENBURG; O.L. & L., LTD., A NEVADA CORPORATION; RUSSEL B. PATRICK; WILLIAM PAYNTER and LEE PAYNTER; ALLAN J. PERRONE; SAM PERRY; WAYNE L. PETERSON and FRANCES E. PETERSON; NEIL W. PLATH and VIRGINIA H. PLATH; JOSEPH D. PRICE; RICHARD D. PROVOST and ADELE K. PROVOST; EDWARD RAHE; VAUGHAN S. REAMS; WILLIAM B. REINER and ANN H. REINER; ERIC W. RETTIG; RONALD L. 59a RODGERS and E.O. RODEFFER; DONALD W. ROSENDAHL and CAROLE L. ROSENDAHL; HORTENSE E. ROZMAN; THOMAS A. RUDY and ARLENE J. RUDY; NORMAN RUIZ and JULIE P. RUIZ; MICHAEL RUTBERG and HELEN RUTBERG; E. KENT SALAS and DOROTHY M. SALAS; LARAY SCHOUWEILER and E.F. SCHOUWEILER; DONALD F. SEDMAK and MADELYN A. SEDMAK; VIVIAN SEFTON; RONALD C. SEIPEL and LUCRETIA E. SEIPEL; JACK SHELLY and CATHERINE SHELLY; BRYAN SHIEMAN and JOY L. SHIEMAN; FRANK C. SIMPSON; HAROLD F. SMILEY and BEULAH S. SMILEY; COL. PHILIP E. SMITH and LEE L. SMITH; ALBERT B. SOLARI; PAUL DONNER SPENCER and EVE PAGE SPENCER; ROGER C. STEELE; WILLIAM D. STEWART and DOROTHY J. STEWART; CHARLES E. STREET; LEWIS THIGPEN; ESTATE OF RAYMOND B. THOMPSON; RODNEY J. THORSEN and ROBERTA J. THORSEN; DAVID V. THRELKEL; WILLIAM F. TISDELL; ROBERT E. TOWNSEND; COURTNEY TREMAINE and SHARON Y. TREMAINE: JAMES H. TREVOR; RICHARD M. VALERIOTE and POLLY P. VALERIOTE; LOUIS VARNESE and ANN MARIE VARNESE; JOHN W. VIGLIONE and MARCIA C. VIGLIONE; SAL VITALE and OLLIE A. VITALE LUCILLE WAGNER; MARGRET L. WALLACE: EDMOND E. WARD and DOLORES A. WARD: GWEN WEINER and LUCILE WEINER; THAD WILEY: JEAN WILTFONG; MIRIAN H. WINGFIELD; JOHN A. WINN and ELLEN S. WINN; PETER W. WRIGHT and JUNE D. WRIGHT; DONALD E. ZWALD and SUZANNE ZWALD. 60a PUBLIC LAW 96-551, 94 Stat. 3233 (DEC. 19, 1980) An Act To grant the consent of the Congress to the Tahoe Regional Planning Compact, and to authorize the Secre-_ tary of Agriculture and others to cooperate with the planning agency thereby created. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in order to encourage the wise use and conservation of the waters of Lake Tahoe and of the resources of the area around said lake, the consent of the Congress is hereby given to the Tahoe Regional Planning Compact heretofore adopted by the States of California and Nev- ada, which compact reads as follows: TAHOE REGIONAL PLANNING COMPACT ARTICLE I. FINDINGS AND DECLARATIONS * OFf PULEKY (a) It is found and declared that: (1) The waters cof Lake Tahoe and other resources of the region are threatened with deterioration or degen- eration, which endangers the natural beauty and eco- nomic productivity of the region. (2) The public and private interests and invest- ments in the region are substantial. (3) The region exhibits unique environmental and ecological values which are irreplaceable. ———EEeEeE—E—— 61a (4) By virtue of the special conditions and cir- cumstances of the region’s natural ecology, developmen- tal pattern, population distribution and human needs, the region is experiencing problems of resource use and defi- ciencies of environmental control. (5) Increasing urbanization is threatening the ecological values of the region and threatening the public opportunities for use of the public lands. (6) Maintenance of the social and economic health of the region depends on maintaining the signifi- cant scenic, recreational, educational, scientific, natural and public health values provided by the Lake Tahoe Basin. (7) There is a public interest in protecting, pre- serving and enhancing these values for the residents of the region and for visitors to the region. (8) Responsibilities for providing recreational and scientific opportunities, preserving scenic and natu- ral areas, and safeguarding the public who live, work and play in or visit the region are divided among local gov- ernments, regional agencies, the States of California and Nevada, and the federal government. (9) In recognition of the public investment and multistate and national significance of the recreational values, the federal government has an interest in the acquisition of recreational property and the management of resources in the region to preserve environmental and recreational values, and the federal government should assist the states in fulfilling their responsibilities. | j | 62a (10) In order to preserve the scenic beauty and outc.oor recreational opportunities of the region, there is a need to insure an equilibrium between the region’s natural endowment and its manmade environment. (b) In order to enhance the efficiency and govern- mental effectiveness of the region, it is imperative that there be established a Tahoe Regional Planning Agency with the powers conferred by this compact including the power to establish environmental threshold carrying capacities and to adopt and enforce a regional plan and implementing ordinances which will achieve and main- tain such capacities while providing opportunities for orderly growth and development consistent with such capacities. (c) The Tahoe Regional Planning Agency shall inter- pret and administer its plans, ordinances, rules and regu- lations in accordance with the provisions of this compact. ARTICLE II. DEFINITIONS As used in this compact, the following terms have the following meanings: (a) “Region,” includes Lake Tahoe, the adjacent parts of Douglas and Washoe Counties and Carson City, which for the purposes of this compact shall be deemed a county, lying within the Tahoe Basin in the State of Nev- ada, and the adjacent parts of the Counties of Placer and El] Dorado lying within the Tahoe Basin in the State of California, and that additional and adjacent part of the County of Placer outside of the Tahoe Basin in the State of California which lies southward and eastward of a line 63a starting at the intersection of the basin crestline and the north boundary of Section 1, thence west to the northwest corner of Section 3, thence south to the intersection of the basin crestline and the west boundary of Section 10; all sections referring to Township 15 North, Range 16 East, M.D.B. & M. The region defined and described herein shall be as precisely delineated on official maps of the agency. (b) “Agency” means the Tahoe Regional Planning Agency. (c) “Governing body” means the governing board of the Tahoe Regional Planning Agency. (d) “Regional plan” means the long-term general plan for the development of the region. (e) “Planning commission” means the advisory plan- ning commission appointed pursuant to subdivision (h) of Article III. (f) “Gaming” means to deal, operate, carry on, con- duct, maintain or expose for play any banking or percent- age game played with cards, dice or any mechanical device or machine for money, property, checks, credit or any representative of value, including, without limiting the generality of the foregoing, faro, monte, roulette, keno, bingo, fan-tan, twenty-one, blackjack, seven-and- a-half, big injun, klondike, craps, stud poker, draw poker or slot machine, but does not include social games played solely for drinks, or cigars or cigarettes served individu- ally, games played in private homes or residences for prizes or games operated by charitable or educational 64a organizations, to the extent excluded by applicable state law. (g) “Restricted gaming license” means a license to operate not more than 15 slot machines on which a quar- terly fee is charged pursuant to NRS 463.373 and no other games. (h) “Project” means an activity undertaken by any person, including any public agency, if the activity may substantially affect the land, water, air, space or any other natural resources of the region. (i) “Environmental threshold carrying capacity” means 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. Such standards shall include but not be limited to standards for air quality, water quality, soil conservation, vegetation preservation and noise. (j) “Feasible” means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social and technological factors. (k) “Areas open to public use” means all of the areas within a structure housing gaming under a nonrestricted license except areas devoted to the private use of guests. (1) “Areas devoted to private use of guests” means hotel rooms and hallways to serve hotel room areas, and any parking areas. A hallway serves hotel room areas if more than 50 percent of the areas of each side of the hallway are hotel rooms. 65a (m) “Nonrestricted license” means a gaming license which is not a restricted gaming license. ARTICLE II. ORGANIZATION (a) There is created the Tahoe Regional Planning Agency as a separate legal entity. The governing body of the agency shall be constitu- ted as follows: (1) California delegation: (A) One member appointed by each of the County Boards of Supervisors of the Counties of El Dorado and Placer and one member appointed by the City Council of the City of South Lake Tahoe. Any such member may be a member of the county board of supervisors or city council, respec- tively, and shall reside in the territorial jurisdiction of the governmental body mak- ing the appointment. (B) Two members appointed by the Governor of California, one member appointed by the Speaker of the Assembly of California and one member appointed by the Senate Rules Committee of the State of California. The members appointed pur- suant to this subparagraph shall not be resi- dents of the region and shall represent the public at large within the State of Califor- nia. A member appointed by the Speaker of the Assembly or the Senate Rules Commit- tee may, subject to confirmation by his or her appointing power, designate an alter- nate to attend meetings and vote in the absence of the appointed member. The des- ignation of a named alternate, which shall 66a be in writing and contain evidence of con- firmation by the appointing power, shall be kept on file with the agency. An appointed member may change his or her alternate from time to time, with the confirmation of the appointing power, but shall have only one designated alternate at a time. An alter- nate shall be subject to those qualifications and requirements prescribed by this com- pact that are applicable to the appointed member. (2) Nevada delegation: (A) One member appointed by each of the boards of county commissioners of Douglas and Washoe Counties and one member appointed by the Board of Super- visors of Carson City. Any such member may be a member of the board of county commissioners or board of supervisors, respectively, and shall reside in the terri- torial jurisdiction of the governmental body making the appointment. (B) Two members appointed by the Governor of Nevada, one member appoin- ted by the Speaker of the Assembly and one member appointed by the Majority Leader of the Nevada Senate. All members appoin- ted pursuant to this subparagraph shall not be residents of the region and shall repre- sent the public at large within the State ot Nevada. A member appointed by the Speaker of the Nevada Assembly or the Majority Leader of the Nevada Senate may, subject to confirmation by his or her appointing power, designate an alternate to attend meetings and vote in the absence of the appointed member. The designation of a named alternate, which shall be in writing and contain evidence of confirmation by the i enrnnetereneneeeial 67a appointing power, shall be kept on file with the agency. An appointed member may change his or her alternate from time to time, with the confirmation of the appoint- ing power, but shall have only one desig- nated alternate at a time. An alternate shall be subject to those qualifications and requirements prescribed by this compact that are applicable to the appointed mem- ber. (3) If any appointing authority under para- graph (1)(A), (1)(B), (2)(A) or (2)(B) fails to make such an appointment within 60 days after the effective date of the amendments to this com- pact or the occurrence of a vacancy on the gov- erning body, the governor of the state in which the appointing authority is located shall make the appointment. The term of any member so appointed shall be 1 year. (4) The position of any member of the gov- erning body shall be deemed vacant if such a member is absent from three consecutive meet- ings of the governing body in any calendar year. (5) Each member and employee of the agency shall disclose his economic interests in the region within 10 days after taking his seat on the governing board or being employed by the agency and shall thereafter disclose any further economic interest which he acquires, as soon as feasible after he acquires it. As used in this paragraph, “economic interests” means: (A) Any business entity operating in the region in which the member or employee has a direct or indirect investment worth more than one thousand dollars ($1,000). (B) Any real property located in the region in which the member or employee 68a has a direct or indirect interest worth more than one thousand dollars ($1,000). (C) Any source of income attributable to activities in the region, other than loans by or deposits with a commercial lending institution in the regular course of business, aggregating two hundred fifty dollars ($250) or more in value received by or promised to the member within the preced- ing 12 months; or (D) Any business entity operating in the region in which the member or employee is a director, officer, partner, trustee, employee or holds any position of management. No member or employee of the agency shall make, or attempt to influence, an agency deci- sion in which he knows or has reason to know he has an economic interest. Members and employees of the agency must disqualify them- selves from making or participating in the mak- ing of any decision of the agency when it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from its effect on the public generally, on the economic interests of the member or employee. (b) The members of the agency shall serve without compensation, but the expenses of each member shall be met by the body which he represents in accordance with the law of that body. All other expenses incurred by the governing body in the course of exercising the powers conferred upon it by this compact unless met in some other manner specifically provided, shall be paid by the agency out of its own funds. (c) The members of the governing body serve at the pleasure of the appointing authority in each case, but 69a each appointment shall be reviewed no less often than every 4 years. Members may be reappointed. (d) The governing body of the agency shall meet at least monthly. All meetings shall be opened to the public to the extent required by the law of the State of California or the State of Nevada, whichever imposes the greater requirement, applicable to local governments at the time such meeting is held. The governing body shall fix a date for its regular monthly meeting in such terms as “the first Monday of each month,” and shall not change such date more often than once in any calendar year. Notice of the date so fixed shall be given by publication at least once in a newspaper or combination of newspapers whose circu- lation is general throughout the region and in each county a portion of whose territory lies within the region. Notice of any special meeting, except an emergency meet- ing, shall be given by so publishing the date and place and posting an agenda at least 5 days prior to the meet- ing. (e) The position of a member of the governing body shall be considered vacated upon his loss of any of the qualifications required for his appointment and in such event the appointing authority shall appoint a successor. (f) The governing body shall elect from its own mem- bers a chairman and vice chairman, whose terms of office shall be 2 years, and who may be reelected. If a vacancy occurs in either office, the governing body may fill such vacancy for the unexpired term. (g) Four of the members of the governing body from each state constitute a quorum for the transaction of the 70a business of the agency. The voting procedures shall be as follows: (1) For adopting, amending or repealing environmental threshold carrying capacities, the regional plan, and ordinances, rules and regula- tions, and for granting variances from the ordi- nances, rules and regulations, the vote of at least four of the members of each state agreeing with the vote of at least four members of the other state shall be required to take action. If there is no vote of at least four of the members from one state agreeing with the vote of at least four of the members of the other state on the actions specified in this paragraph, an action of rejec- tion shall be deemed to have been taken. (2) For approving a project, the affirmative vote of at least five members from the state in which the project is located and the affirmative vote of at least nine members of the governing body are required. If at least five members of the governing body from the state in which the project is located and at least nine members of the entire governing body do not vote in favor of the project, upon a motion for approval, an action of rejection shall be deemed to have been taken. A decision by the agency to approve a project shall be supported by a statement of findings, adopted by the agency, which indi- cates that the project complies with the regional plan and with applicable ordinances, rules and regulations of the agency. (3) For routine business and for directing the agency’s staff on litigation and enforcement actions, at least eight members of the governing body must agree to take action. If at least eight votes in favor of such action are not cast, an action of rejection shall be deemed to have been taken. 7la Whenever under the provisions of this compact or any ordinance, rule, regulation or policy adopted pursuant thereto, the agency is required to review or approve any project, public or private, the agency shall take final action by vote, whether to approve, to require modifica- tion or to reject such project, within 180 days after the application for such project is accepted as complete by the agency in compliance with the agency’s rules and regulations governing such delivery unless the applicant has agreed to an extension of this time limit. If a final action by vote does not take place within 180 days, the applicant may bring an action in a court of competent jurisdiction to compel a vote unless he has agreed to an extension. This provision does not limit the right of any person to obtain judicial review of agency action under subdivision (h) of Article VI. The vote of each member of the governing body shall be individually recorded. The governing body shall adopt its own rules, regulations and procedures. (h) An advisory planning commission shall be appointed by the agency. The commission shall include: the chief planning officers of Placer County, El Dorado County, and the City of South Lake Tahoe in California and of Douglas County, Washoe County and Carson City in Nevada, the executive officer of the Lahontan Regional Water Quality Control Board of the State of California, the executive officer of the Air Resources Board of the State of California, the Director of the State Department of Conservation and Natural Resources of the State of Nevada, the Administrator of the Division of Environ- mental Protection in the State Department of Conserva- tion and Natural Resources of the State of Nevada, the 72a Administrator of the Lake Tahoe Management Unit of the United States Forest Service, and at least four lay mem- bers with an equal number from each state, at least half of whom shall be residents of the region. Any official mem- ber may designate an alternate. The term of office of each lay member of the advisory planning commission shall be 2 years. Members may be reappointed. The position of each member of the advisory plan- ning commission shall be considered vacated upon loss of any of the qualifications required or appointment, and in such an event the appointing authority shall appoint a successor. The advisory planning commission shall elect from its own members a chairman and a vice chairman, whose terms of office shall be 2 years and who may be reelected. If a vacancy occurs in either office, the advisory planning commission shall fill such vacancy for the unexpired term. A majority of the members of the advisory planning commission constitutes a quorum for the transaction of the business of the commission. A majority vote of the quorum present shall be required to take action with respect to any matter. (i) The agency shall establish and maintain an office within the region, and for this purpose the agency may rent or own property and equipment. Every plan, ordi- nance and other record of the agency which is of such nature as to constitute a public record under the law of either the State of California or the State of Nevada shall 73a be opened to inspection and copying during regular office hours. (j) Each authority charged under this compact or by the law of either state with the duty of appointing a member of the governing body of the agency shall by certified copy of its resolution or other action notify the Secretary of State of its own state of the action taken. ARTICLE IV. PERSONNEL (a) The governing body shall determine the qualifica- tion of, and it shall appoint and fix the salary of, the executive officer of the agency, and shall employ such other staff and legal counsel as may be necessary to execute the powers and functions provided for under this compact or in accordance with any intergovernmental contracts or agreements the agency may be responsible for administering. (b) Agency personnel standards and regulations shall conform insofar as possible to the regulations and pro- cedures of the civil service of the State of California or the State of Nevada, as may be determined by the governing body of the agency; and shall be regional and bistate in application and effect; provided that the governing body may, for administrative convenience and at its discretion, assign the administration of designated personnel arrangements to an agency of either state, and provided that administratively convenient adjustments be made in the standards and regulations governing personnel assigned under intergovernmental agreements. 74a (c) The agency may establish and maintain or partici- pate in such additional programs of employee benefits as may be appropriate to afford employees of the agency terms and conditions of employment similar to those enjoyed by employees of California and Nevada gener- ally. ARTICLE V. PLANNING (a) In preparing each of the plans required by this article and each amendment thereto, if any, subsequent to its adoption, the planning commission after due notice shall hold at least one public hearing which may be continued from time to time, and shall review the testi- mony and any written recommendations presented at such hearing before recommending the plan or amend- ment. The notice required by this subdivision shall be given at least 20 days prior to the public hearing by publication at least once in a newspaper or combination of newspapers whose circulation is general throughout the region and in each county a portion of whose terri- tory lies within the region. The planning commission shall then recommend such plan or amendment to the governing body for adop- tion by ordinance. The governing body may adopt, mod- ify or reject the proposed plan or amendment, or may initiate and adopt a plan or amendment without referring it to the planning commission. If the governing body initiates or substantially modifies a plan or amendment, it shall hold at least one public hearing thereon after due notice as required in this subdivision. 75a If a request is made for the amendment of the regional plan by: (1) A political subdivision a part of whose territory would be affected by such amendment; or (2) The owner or lessee of real property which would be affected by such amendment, the governing body shall complete its action on such amendment within 180 days after such request is accepted as complete according to standards which must be prescribed by ordinance of the agency. (b) The agency shall develop, in cooperation with the States of California and Nevada, environmental threshold carrying capacities for the region. The agency should request the President’s Council on Environmental Qual- ity, the U.S. Forest Service and other appropriate agencies to assist in developing such environmental threshoid car- rying capacities. Within 18 months after the effective date of the amendments to this compact, the agency shall adopt environmental threshold carrying capacities for the region. (c) Within 1 year after the adoption of the environ- mental threshold carrying capacities for the region, the agency shall amend the regional plan so that, at a mini- mum, the plan and all of its elements, as implemented through agency ordinances, rules and regulations, achieves and maintains the adopted environmental threshold carrying capacities. Each element of the plan shall contain implementation provisions and time sched- ules for such implementation by ordinance. The planning commission and governing body shall continuously 76a review and maintain the regional plan. The regional plan shall consist of a diagram, or diagrams, and text, or texts setting forth the projects and proposals for implementa- tion of the regional plan, a description of the needs and goals of the region and a statement of the policies, stan- dards and elements of the regional plan. The regional plan shall be a single enforceable plan and include all of the following correlated elements: (1) A land use plan for the integrated arrangement and general location and extent of, and the criteria and standards for, the uses of land, water, air, space and other natural resources within the region, including but not limited to, an indication or allocation of maxi- mum population densities and permitted uses. (2) A transportation plan for the integrated development of a regional system of transporta- tion, including but not limited to parkways, highways, transportation facilities, transit routes, waterways, navigation facilities, public transportation: facilities, bicycle facilities, and appurtenant terminals and facilities for the movement of people and goods within the region. The goal of transportation planning shall be: (A) To reduce dependency on the auto- mobile by making more effective use of “ existing transportation modes and of public transit to move people-and goods within the region and (B) To reduce to the extent feasible air pollution which is caused by motor vehi- cles. Where increases in capacity are required, the agency shall give preference to providing such 77a capacity through public transportation and pub- lic programs and projects related to transporta- tion. The agency shall review and consider all existing transportation plans in preparing its regional transportation plan pursuant to this paragraph. The plan shall provide for an appropriate transit system for the region. The plan shall give consideration to: (A) Completion of the Loop Road in the States of Nevada and California; (B) Utilization of a light rail mass tran- sit system in the South Shore area; and (C) Utilization of a transit terminal in the Kingsbury Grade area. Until the regional plan is revised, or a new transportation plan is adopted in accordance with this paragraph, the agency has no effective transportation plan. (3) 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, shore- line and submerged lands, scenic corridors along transportation routes, Open spaces, recre- ational and historical facilities. (4) A recreation plan for che development, utilization, and management of the recreational resources of the region, including but not lim- ited to, wilderness and forested lands, parks and parkways, riding and hiking trails, beaches and playgrounds, marinas, areas for skiing and other recreational facilities. (5) A public services and facilities plan for the general location, scale and Provision of pub- lic services and facilities, which, by the nature of 78a their function, size, extent and other characteris- tics are necessary or appropriate for inclusion in the regional plan. In formulating and maintaining the regional plan, the planning commission and governing body shall take account of and shall seek to harmonize the needs of the region as a whole, the plans of the counties and cities within the region, the plans and planning activities of the state, federal and other public agencies and nongovern- mental agencies and organizations which affect or are concerned with planning and development within the region. (d) The regional plan shall provide for attaining and maintaining federal, state, or local air and water quality standards, whichever are strictest, in the respective por- tions of the region for which the standards are applicable. The agency may, however, adopt air or water quality standards or control measures more stringent than the applicable state implementation plan or the applicable federal, state, or local standards for the region, if it finds that such additional standards or control measures are necessary to achieve the purposes of this compact. Each element of the regional plan, where applicable, shall, by ordinance, identify the means and time schedule by which air and water quality standards will be attained. (e) Except for the Regional Transportation Plan of the California Tahoe Regional Planning Agency, the regional plan, ordinances, rules and regulations adopted by the California Tahoe Regional Planning Agency in effect on July 1, 1980, shall be the regional plan, ordinances, rules and regulations of the Tahoe Regional Planning Agency 79a for that portion of the Tahoe region located in the State of California. Such plan, ordinance, rule or regulation may be amended or repealed by the governing body of the agency. The plans, ordinances, rules and regulations of the Tahoe Regional Planning Agency that do not conflict with, or are not addressed by, the California Tahoe Regional Planning Agency’s plans, ordinances, rules and regulations referred to in this subdivision shall continue to be applicable unless amended or repealed by the gov- erning body of the agency. No provision of the regional plan, ordinances, rules and regulations of the California Tahoe Regional Planning Agency referred to in this sub- division shall apply to that portion of the region within the State of Nevada, unless such provision is adopted for the Nevada portion of the region by the governing body of the agency. (f) The regional plan, ordinances, rules and regula- tions of the Tahoe Regional Planning Agency apply to that portion of the region within the State of Nevada. (g) The agency shall adopt ordinances prescribing specific written findings that the agency must make prior to approving any project in the region. These findings shall relate to environmental protection and shall insure that the project under review will not adversely affect implementation of the regional plan and will not cause the adopted environmental threshold carrying capacities of the region to be exceeded. (h) The agency shall maintain the data, maps and other information developed in the course of formulating and administering the regional plan, in a form suitable to assure a consistent view of developmental trends and 80a other relevant information for the availability of and use by other agencies of government and by private organiza- tions and individuals concerned. (i) Where necessary for the realization of the regional plan, the agency may engage in collaborative planning with local governmental jurisdictions located outside the region, but contiguous to its boundaries. In formulating and implementing the regional plan, the agency shall seek the cooperation and consider the recommendations of counties and cities and other agencies of local govern- ment, of state and federal agencies, of educational institu- tions and research organizations, whether public or private, and of civic groups and private persons. ARTICLE VI. AGENCY’S POWERS (a) The governing body shall adopt all necessary ordinances, rules, and regulations to effectuate the adopted regional plan. Except as otherwise provided in this compact, every such ordinance, rule or regulation shall establish a minimum standard applicable through- out the region. Any political subdivision or public agency may adopt and enforce an equal or higher requirement applicable to the same subject of regulation in its terri- tory. The regulations of the agency shall contain stan- dards including but not limited to the following: water purity and clarity; subdivision; zoning; tree removal; solid waste disposal; sewage disposal; land fills, excava- tions, cuts and grading; piers, harbors, breakwaters or channels and other shoreline developments; waste dis- posal in shoreline areas; waste disposal from boats; 8la mobile-home parks; house relocation; outdoor advertis- ing; flood plain protection; soil and sedimentation con- trol; air pollution; and watershed protection. Whenever possible without diminishing the effectiveness of the regional plan, the ordinances, rules, regulations and poli- cies shall be confined to matters which are general and regional in application, leaving to the jurisdiction of the respective states, counties and cities the enactment of specific and local ordinances, rules, regulations and poli- cies which conform to the regional plan. The agency shall prescribe by ordinance those activ- ities which it has determined will not have substantial effect on the land, water, air, space or any other natural resources in the region and therefore will be exempt from its review and approval. Every ordinance adopted by the agency shall be pub- lished at least once by title in a newspaper or combina- tion of newspapers whose circulation is general throughout the region. Except an ordinance adopting or amending the regional plan, no ordinance shall become effective until 60 days after its adoption. Immediately after its adoption, a copy of each ordinance shall be transmitted to the governing body of each political subdi- vision having territory within the region. (b) No project other than those to be reviewed and approved under the special provisions of subdivisions (d), (e), (f) and (g) may be developed in the region with- out obtaining the review and approval of the agency and no project may be approved unless it is found to comply with the regional plan and with the ordinances, rules and 82a regulations enacted pursuant to subdivision (a) to effec- tuate that plan. The agency may approve a project in the region only after making the written findings required by this subdivision or subdivision (g) of Article V. Such findings shall be based on substantial evidence in the record. Before adoption by the agency of the ordinances required in subdivision (g) of Article V, the agency may approve a project in the region only after making written findings on the basis of substantial evidence in the record that the project is consistent with the regional plan then in effect and with applicable plans, ordinances, regula- tions and standards of federal and state agencies relating to the protection, maintenance and enhancement of envi- ronmental quality in the region. (c) The Legislatures of the States of California and Nevada find that in order to make effective the regional plan as revised by the agency, it is necessary to halt temporarily works of development in the region which might otherwise absorb the entire capability of the region for further development or direct it out of harmony with the ultimate plan. Subject to the limitation provided in this subdivision, from the effective date of the amend- ments to this compact until the regional plan is amended pursuant to subdivision (c) of Article V, or until May 1, 1983, whichever is earlier: (1) Except as otherwise provided in this paragraph, no new subdivision, planned unit development, or condominium project may be approved unless a complete tentative map or plan has been approved before the effective date of the amendments to this compact by all agen- cies having jurisdiction. The subdivision of land SIR ee 83a owned by a general improvement district, which existed and owned the land before the effective date of the amendments to this compact, may be approved if subdivision of the land is necessary to avoid insolvency of the district. (2) Except as provided in paragraph (3), no apartment building may be erected unless the required permits for such building have been secured from all agencies having jurisdic- tion, prior to the effective date of the amend- ments to this compact. (3) During each of the calendar years 1980, 1981, and 1982 no city or county may issue build- ing permits which authorize the construction of a greater number of new residential units within the region than were authorized within the region by building permits issued by that city or county during calendar year 1978. For the period of Janu- ary through April, 1983 building permits authoriz- ing the construction of no more than 1/3 of that number may be issued by each such city or county. For purposes of this paragraph a “residential unit” means either a single family residence or an indi- vidual residential unit within a larger building, such as an apartment building, a duplex or a con- dominium. The Legislatures find the respective numbers of resi- dential units authorized within the region during calen- dar year 1978 to be as follows: 1. City of South Lake Tahoe and El Dorado County (CODING)... <2. csccccveenscs 282 Si "RD I os cas Verses cee ade 278 ae Se ean chat Wea eese ese 0 ee 339 2h. CE RN arr once ea eeueew heer: 739 84a (4) During each of the calendar years 1980, 1981 and 1982, no city or county may issue building permits which authorize construction of a greater square footage of new commercial buildings within the region than were autho- rized within the region by building permits for commercial purposes issued by that city or county during the calendar year 1978. For the period of January through April, 1983 building permits authorizing the construction of no more than 1/3 the amount of that square footage may be issued by each such city or county. The Legislatures find the respective square footages of commercial buildings authorized within the region during calendar year 1978 to be as follows: 1. City of South Lake Tahoe and El Dorado County (combined)....... 64,324 oe gk. Serer errr rrr Tee 23,000 Oe - Me EN bo hha ed A ia 0 ee a er eer rere Pere 57,354 5. Washoe Coupity .,........2....2520.- 50,600 (5) No structure may be erected to house gaming under a nonrestricted license. (6) No facility for the treatment of sewage may be constructed or enlarged except: (A) To comply, as ordered by the appropriate state agency for the control of water pollution, with existing limitations of effluence under the Clean Water Act, 33 U.S.C. § 1251 et seq., and the applicable state law for control of water pollution; or (B) To accommodate development which is not prohibited or limited by this subdivision; or 85a (C) In the case of Douglas County Sewer District #1, to modify or otherwise alter sewage treatment facilities existing on the effective date of the amendments to this compact so that such facilities will be able to treat the total volume of effluence for which they were originally designed which is 3.0 mgd. Such modification or alteration is not a “project”; is not subject to the requirements of Article VII; and does not require a permit from the agency. Before commencing such modification or alterna- tive, however, the district shall submit to the agency its report identifying any signifi- cant soil erosion problems which may be caused by such modifications or alterations and the measures which the district pro- poses to take to mitigate or avoid such problems. The moratorium imposed by this subdivision does not apply to work done pursuant to a right vested before the effective date of the amendments to this compact. Notwithstanding the expiration date of the moratorium imposed by this subdivision, no new highway may be built or existing highway widened to accommodate addi- tional continuous lanes for automobiles until the regional transportation plan is revised and adopted. The moratorium imposed by this subdivision does not apply to the construction of any parking garage which has been approved by the agency prior to May 4, 1979, whether that approval was affirmative or by default. The provisions of this paragraph are not an expression of legislative intent that any such parking garage, the approval of which is the subject of litigation 86a which was pending on the effective date of the amend- ments to this compact, should, or should not, be con- structed. The provisions of this paragraph are intended solely to permit construction of such a parking garage if judgment sustaining the agency’s approval to construct that parking garage has become final and no appeal is pending or may lawfully be taken to a higher court. (d) Subject to the final order of any court of compe- tent jurisdiction entered in litigation contesting the val- idity of an approval by the Tahoe Regional Planning Agency, whether that approval was affirmative or by default, if that litigation was pending on May 4, 1979, the agency and the States of California and Nevada shall recognize as a permitted and conforming use: (1) Every structure housing gaming under a nonrestricted license which existed as a licensed gaming establishment on May 4, 1979, or whose construction was approved by the Tahoe Regional Planning Agency affirmatively or deemed approved before that date. The con- struction or use of any structure to house gam- ing under a nonrestricted license not so existing or approved, or the enlargement in cubic vol- ume of any such existing or approved structure is prohibited. (2) Every other nonrestricted gaming establishment whose use was seasonal and whose license was issued-before May 4, 1979, for the same season and for the number and type of games and slot machines on which taxes or fees were paid in the calendar year 1978. (3) Gaming conducted pursuant to a_ restricted gaming license issued before May 4, 1979, to the extent permitted by that license on that date. 87a The area within any structure housing gaming under a nonrestricted license which may be open to public use (as distinct from that devoted to the private use of guests and exclusive of any parking area) is limited to the area existing or approved for public use on May 4, 1979. Within these limits, any external modification of the structure which requires a permit from a local govern- ment also requires approval from the agency. The agency shall not permit restaurants, convention facilities, show- rooms or other public areas to be constructed elsewhere in the region outside the structure in order to replace areas existing or approved for public use on May 4, 1979. (e) Any structure housing licensed gaming may be rebuilt or replaced to a size not to exceed the cubic volume, height and land coverage existing or approved on May 4, 1979, without the review or approval of the agency or any planning or regulatory authority of the State of Nevada whose review or approval would be required for a new structure. (f) The following provisions apply to any internal or external modification, remodeling, change in use, or repair of a structure housing gaming under a non- restricted license which is not prohibited by article VI(d): (1) The agency’s review of an external modification of the structure which requires a permit from a local government is limited to determining whether the external modification will do any of the following: (A) Enlarge the cubic volume of the structure; 88a (B) Increase the total square footage of area open to or approved for public use on May 4, 1979; (C) Convert an area devoted to the private use of guests to an area open to public use; (D) Increase the public area open to public use which is used for gaming beyond the limits contained in paragraph (3); and (E) Conflict with or be subject to the provisions of any of the agency’s ordinances that are generally applicable throughout the region. The agency shall make this determination within 60 days after the proposal is delivered to the agency in compliance with the agency’s rules or regulations governing such delivery unless the applicant has agreed to an extension of this time limit. If an external modification is determined to have any of the effects enumer- ated in subparagraphs (A) through (C), it is prohibited. If an external modification is deter- mined to have any of the effects enumerated in subparagraphs (D) or (E), it is subject to the applicable provisions of this compact. If an external modification is determined to have no such effect, it is not subject to the provisions of this compact. (2) Except as provided in paragraph (3), internal modification, remodeling, change in use or repair of a structure housing gaming under a nonrestricted license is not a project and does not require the review or approval of the agency. (3) Internal modification, remodeling, change in use or repair of areas open to the public use within a structure housing gaming 89a under a nonrestricted license which alone or in combination with any other such modification, remodeling, change in use or repair will increase the total portion of those areas which are used for gaming by more than the product of the total base area, as defined below, in square feet existing on or approved before August 4, 1980, multiplied by 15 percent constitutes a pro- ject and is subject to all of the provisions of this compact relating to projects. For purposes of this paragraph and the determination required by subdivision (g), base area means all of the area within a structure housing gaming under a nonrestricted license which may be open to pub- lic use, whether or not gaming is actually con- ducted or carried on in that area, except retail stores, convention centers and meeting rooms, administrative offices, kitchens, maintenance and storage areas, rest rooms, engineering and mechanical rooms, accounting rooms and count- ing rooms. (g) In order to administer and enforce the provi- sions of subdivisions (d), (e) and (f), the State of Nevada, through its appropriate planning or regulatory agency, shall require the owner or licensee of a structure housing gaming under a nonrestricted license to provide: (1) Documents containing sufficient infor- mation for the Nevada agency to establish the following relative to the structure: ; (A) The location of its external walls: (B) Its total cubic volume; (C) Within its external walls, the area in square feet open or approved for public use and the area in square feet devoted to or approved for the private use of guests on lay 4, 1979; 90a (D) The amount of surface area of land under the structure; and (E) The base area as defined in para- graph (3) of subdivision (f) in square feet existing on or approved before August 4, 1980. (2) An informational report whenever any internal modification, remodeling, change in use, or repair will increase the total portion of the areas open to public use which is used for gaming. The Nevada agency shall transmit this information to the Tahoe Regional Planning Agency. (h) Gaming conducted pursuant to a restricted gam- ing license is exempt from review by the agency if it is incidental to the primary use of the premises. (i) The provisions of subdivisions (d) and (e) are intended only to limit gaming and related activities as conducted within a gaming establishment, or construc- tion designed to permit the enlargement of such activ- ities, and not to limit any other use of property zoned for commercial use or the accommodation of tourists, as approved by the agency. (j) Legal actions arising out of or alleging a viola- tion of the provisions of this compact, of the regional plan or of an ordinance or regulation of the agency or of a permit or a condition of a permit issued by the agency are governed by the following provisions: (1) This subdivision applies to: (A) Actions arising out of activities directly undertaken by the agency. 9la (B) Actions arising out of the issuance to a person of a lease, permit, license or other entitlement for use by the agency. (C) Actions arising out of any other act or failure to act by any person or public agency. Such legal actions may be filed and the provi- sions of this subdivision apply equally in the appropriate courts of California and Nevada and of the United States. (2) Venue lies: (A) If a civil or criminal action chal- lenges an activity by the agency or any per- son which is undertaken or to be undertaken upon a parcel of real property, in the state or federal judicial district where the real property is situated. (B) If an action challenges an activity which does not involve a specific parcel of land (such as an action challenging an ordi- nance of the agency), in any state or federal court having jurisdiction within the region. (3) Any aggrieved person may file an action in an appropriate court of the State of California or Nevada or of the United States alleging noncompliance with the provisions of this compact or with an ordinance or regulation of the agency. In the case of governmental agen- cies, “aggrieved person” means the Tahoe Regional Planning Agency or any state, federal or local agency. In the case of any person other than a governmental agency who challenges an action of the Tahoe Regional Planning Agency, “aggrieved person” means any person who has appeared, either in person, through an autho- rized representative, or in writing, before the agency at an appropriate administrative hearing 92a to register objection to the action which is being challenged, or who had good cause for not mak- ing such an appearance. (4) A legal action arising out of the adop- tion 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. (5) In any legal action filed pursuant to this subdivision which challenges an adjudica- tory act or decision of the agency to approve or disapprove a project, the scope of judicial inquiry shall extend only to whether there was prejudicial abuse of discretion. Prejudicial abuse of discretion is established if the agency has not proceeded in a manner required by law or if the act or decision of the agency was not supported by substantial evidence in light of the whole record. In making such a determination the court shall not- exercise its independent judg- ment on evidence but shall only determine whether the act or decision was supported by substantial evidence in light of the whole record. In any legal action filed pursuant to this subdivision which challenges a legislative act or decision of the agency (such as the adoption of the regional plan and the enactment of imple- menting ordinances), the scope of the judicial inquiry shall extend only to the questions of whether the act or decision has been arbitrary, capricious or lacking substantial evidentiary support or whether the agency has failed to proceed in a manner required by law. (6) The provisions of this subdivision do not apply to [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1226%3A1. Public record. Not legal advice.