Tahoe Development May Fall Under Big Bike Path

SAN FRANCISCO (CN) - An inaccurate bike path designation should doom a Lake Tahoe residential development, environmentalists told the 9th Circuit.

Click here to read Courthouse News' Environmental Law Review.

The League to Save Lake Tahoe sued the Tahoe Regional Planning Agency in 2009 over its Sierra Colina Village Project, a 50-home development that would sit on an 18-acre parcel in Stateline, Nev.

It says that the agency has ignored its own regulations meant to protect Lake Tahoe from pollution, particularly through land coverage restrictions intended to stop a loss of clarity.

To get around coverage restrictions and build a bigger development, the developer characterized one 20-foot-wide paved thoroughfare as a bike path and emergency vehicle access, according to the league. The path stretches 1120 feet in length.

This erroneous classification added 16,500 feet of illegal coverage to the more than 108,000 square-foot project, according to the complaint.

The league has slammed the agency for improperly describing this section as a "Linear Public Facility," meaning that it will not count toward development hardscape limits.

Chief U.S. District Judge Robert Jones found that the agency had properly weighed environmental and public use factors and granted it summary judgment last summer.

The decision describes the paved section as a "shared roadway" that would be used by bicyclists, pedestrians and resident drivers.

But the league says it is one of thousands of parcels, roads and buildings that will contribute pollution runoff into the lake.

"Lake Tahoe is suffering a death of a thousand cuts," the group's attorney, Michael Lozeau, told a three-judge panel of the 9th Circuit on Monday..

The case is really about "whether the TRPA can make believe that a private driveway designed primarily designed to allow the residents of a 50-home development to get their cars from the adjacent road to their houses is instead primarily an oversized bike path," said Lozeau, an attorney with Lozeau Drury in Oakland, Calif.

Though residents will primarily use the path, the agency has not shown that it considered feasible alternatives to reduce land coverage, Lozeau said.

The three-judge panel questioned whether the road was truly a public facility, and whether any evidence shows that nonresidents will primarily use the road.

"We're just trying to figure out how to enforce your code and the code says the public has to predominate, and clearly the LPF3 is designed as a road for the residents," Judges Sidney Thomas said, abbreviating linear public facility. "It has some beneficial effects for the public but it's hard to see that it isn't."

He asked whether an 8-foot wide path would be less accommodating to emergency vehicles and bicyclists.

"It looks to me that there are feasible alternatives [to the 20-foot-wide path], it's just that the project won't get done. Isn't that true?" Thomas asked.

Planning agency attorney Lewis Feldman said that the agency had to balance such tradeoffs to make the project feasible.

Feldman, an attorney with Feldman McLaughlin Thiel in Zephyr Cove, Nev., said the agency had followed its charter and that the project would not exceed water quality and drainage standards.

The Tahoe Regional Planning Agency is a two-state compact between California and Nevada that is charged with protecting the Lake Tahoe watershed through land-use regulation.

At the close of an hour of argument, Judge Thomas thanked counsel and said the dispute was an "interesting case."

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