Editors's Note: This is the fourth in a series of Tahoe Daily Tribune stories examining the foundation and operation of the Tahoe Regional Planning Agency.
Whether the Tahoe Regional Planning Agency has overstepped its bounds can be boiled down to windows, metal and paint around Lake Tahoe.
Adopted in November 2002 by a unanimous vote of the TRPA Governing Board, a scenic ordinance requires additions, paint jobs or other construction work on existing or new homes seen from the lake or along the shoreline to have tones natural to the environment, minimal impact on natural views and sufficient landscaping.
There are similar ordinances on structures visible from the basin's major highways, Pioneer Trail and the 11 designated bike trails.
Improvements to buildings have to go through an approval process, in which the owner provides samples of the current and future look of the structure.
Scores and requirements are given on five levels of construction, ranging from replacing a door to new structures on vacant lots. If the score doesn't meet the minimum requirement, further work to camouflage the building into its environment is required.
Critics argue it's not in the TRPA's charter to enforce such an issue. Agency heads and supporters believe the ordinance falls under one of nine thresholds that deals with the scenic quality of the lake, which they say has declined.
Along with Congress, California and Nevada directed the TRPA to protect the lake's beauty in 1969 and 1980. In response, TRPA developed nine "thresholds" in 1982 that focus on scenic qualities of the basin, including an evaluation that the lake's overall scenic quality was disappearing primarily due to new buildings that clash with the natural environment.
Construction controversy
"Landscaping and the amount of windows on homes have nothing to do with preservation or enhancing the natural beauty of the Lake Tahoe region," said California state Sen. Rico Oller, R-San Andreas. "Although TRPA serves a valuable purpose, these guidelines are clearly a departure of what this agency was created for."
The ordinance bred a committee of North Shore professionals to battle TRPA with lawsuits.
"They decided to have public forums to come up with what appears to be public input," said Bob Wheeler, an Incline Village resident. "Unfortunately, (the) reality is public input was ignored for the large part. They came up with an evaluation system in June of 2002 that was so unrealistic that I formed with people around the lake the Committee for the Reasonable Regulation of Lake Tahoe."
Prior to the ordinance's adoption, the controversy forced a special meeting of the Nevada Legislative Oversight Committee in August 2002. About 200 people appeared -- most opposed to the issue.
A dogfight ensued between speakers who represented each side.
One committee member, state Sen. Maggie Carlton, D-Las Vegas, decided to walk out of the room after she was hammered by boos when she expressed her opinion.
John Hitchcock defended the review system. As a planner on the issue, he said the ordinance falls under the agency's charter.
"In order to preserve the scenic beauty and outdoor recreational opportunities of the region, there is a need to insure an equilibrium between the region's natural endowment and its manmade environment," Hitchcock said, citing a portion of Article 1.
He rebutted concerns the ordinance infringes on property rights, saying it does not "illegally affect private property rights" and avoids putting obligations on homeowners.
"TRPA's scenic ordinances place reasonable and generally very limited restrictions on private property for the benefit of the public," he said. "TRPA does not view this compromise as in any way inappropriately affecting private property rights."
Other worries included higher fire danger from an increased number of trees, a homeowner's inability to obtain loans if a house is in noncompliance, and more trees limiting the effectiveness of solar panels.
"The public input received by TRPA resulted in many modifications to staff's original recommendations," Hitchcock said.
Scenic court decisions
A U.S. Supreme Court ruling in 1954 paved the way for governments to impose design standards or control aesthetics.
The case, Berman v. Parker, determined pleasant and modern-looking structures could replace old but historic buildings, said Marya Morris, a senior research associate with the American Planning Association.
More important, the decision allowed governments to control the scenic aspects of their jurisdictions.
Design standards were reaffirmed in the 1970s with a U.S. Supreme Court ruling allowing San Diego to limit the number of billboards, Morris said.
The high court determined the protection or enhancement of scenic quality helps the local government protect health, safety and welfare.
After the decision, standards popped up in places such as Carmel, Calif.; Scottsdale, Ariz.; Laguna Beach, Calif.; and St. Augustine, Fla.
"Those places have a quality that people flock to, and sometimes it's the excessive flocking that leads to the degradation," Morris said.
The standards adopted by cities typically deal with external building materials, height of the structure, roof slopes, placement of garages, landscaping and lot coverage.
Morris, who works in Chicago, knew of TRPA's scenic ordinance. While many tourist-based communities have instituted design standards, she said adopting or not adopting ordinances depends on what residents want the area to look like in the future.
"I think that I would regard scenic beauty of the (Lake Tahoe) area as the No. 1 economic driver of the region. And to the extent that design standards seek to protect that asset, that is a good thing, and it is reflective of the broader interests of Lake Tahoe regional residents," she said. "It is in the broadest interest of everyone to keep the place intact.
"In my opinion, most courts will support a government agency's use of design guidelines if the ordinances implementing them are carefully and clearly drafted, easy to understand on both the applicant's part and the commission's part," she said.
"Commissions get into trouble when they overreach their discretion and make it a guessing game for the applicant such as when a commission says, in effect, 'keep modifying your proposal -- we'll tell you when we like it.'"
A work in progress
Jan Brisco has taken special interest in the topic. Brisco, executive director of Tahoe Lakefront Owner's Association, represents 1,500 property owners.
Brisco remains frustrated with what she calls the lack of communication and uniform enforcement.
"The left hand is doing stuff; the right hand doesn't know what's going on," Brisco said about the differences between the TRPA Governing Board and staff interpretations of the ordinance.
One difference, Brisco said, regards piers. Brisco and others contend that before the ordinance was adopted, former TRPA Executive Director Juan Palma said improvements or replacements on piers didn't trigger the system.
Now, Brisco says, any work costing more than $5,000 wouldn't be exempt from the ordinance.
She blames "ever-changing staff" for the differences in viewpoint.
Hitchcock acknowledged some areas need to be modified.
"Some miscommunication may have occurred in the interpretation of certain sections of the code, but that is being ironed out between staff and applicants," he said.
"I anticipate that difficult issues will continue to arise, but TRPA is committed to working them out with all applicants in a manner that promotes both environmental protection and efficient application processing."