Garmong v. Tahoe Regional Planning Agency et al

Filing 110

ORDER that the Motion for Preliminary Injunction ECF No. 89 is DENIED; the Motion for Leave to File Excess Pages ECF No. 97 and the Motion to Dismiss ECF No. 101 are GRANTED; the Motion to Dismiss ECF No. 104 is DENIED as moot; Clerk directed to enter judgment and close case. Signed by Judge Robert C. Jones on 8/28/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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______________________________________
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GREGORY O. GARMONG,
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Plaintiff,
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vs.
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TAHOE REGIONAL PLANNING AGENCY )
et al.,
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Defendants.
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3:17-cv-00444-RCJ-WGC
ORDER

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This case arises out of the approval of a cell tower project in the Lake Tahoe area.

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Pending before the Court are a motion for a preliminary injunction and two motions to dismiss.

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I.

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FACTS AND PROCEDURAL HISTORY
Plaintiff Gregory Garmong resides in Douglas County, Nevada near Lake Tahoe and has

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a second home in Smith, Nevada. In the First Amended Complaint (“FAC”), he has sued the

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Tahoe Regional Planning Agency (“TRPA”), Verizon Wireless, Inc. (“Verizon”), Complete

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Wireless Consulting, Inc. (“CWC”), Crown Castle, and eighteen individuals in this Court, listing

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thirty-four causes of action. His claims arise out of TRPA’s grant of a permit (“the Permit”) to

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CWC to construct a cell tower within TRPA’s jurisdiction at 811 U.S. Highway 50 (“US 50”) in

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Douglas County (“the Project”). The Court has taken judicial notice that the site of the Project is

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directly across US 50 from the Skyland neighborhood where Plaintiff lives, which is about a mile

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south of the Cave Rock Tunnel on US 50 and a mile north of Zephyr Cove on the east shore of

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Lake Tahoe. The site currently appears free from development except for a water tower.

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Plaintiff alleges TRPA mailed a notice of the February 23, 2017 hearing on the Project to

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property owners like him on February 9 (“the Notice”), which indicated a February 23 hearing

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on the Project, and that he received the Notice on February 14. The Court takes judicial notice

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that February 14 was a Tuesday. The Notice indicated that Bridget Cornell was the point of

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contact for the Project, and that the application for the Project (“the Application”) could be

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viewed from 9:00 a.m. to 12:00 p.m. and 1:00 p.m. to 4:00 p.m. on Mondays, Wednesdays,

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Thursdays, and Fridays. The Notice also indicated that a “staff summary” for the Project could

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be viewed at www.trpa.org (“the Website”) and at the TRPA office as of February 16. Written

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comments had to be received by February 22 or they would not be considered at the February 23

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hearing. When Plaintiff checked the Website on 5:20 p.m. on February 16, he was unable to

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locate any staff summary, although it became available at some time after that for a total of less

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than seven days prior to the hearing.

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Plaintiff does not allege that the Application was not viewable at the TRPA office on

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Wednesday the 15th, Thursday the 16th, Friday the 17th, Monday the 20th, and Wednesday the

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22nd. He alleges only that the weather was “very bad” on February 15–17 due to significant

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snowfall that made it hazardous to drive. Plaintiff does not allege any such difficulties on

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Monday the 20th or Wednesday the 22nd, although TRPA was closed on the 20th for President’s

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Day. The Court previously took judicial notice that there was no recorded precipitation at the

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South Lake Tahoe Airport (approximately twelve miles by road from Skyland) on February 14th

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or 15th, 0.24 inches of snow on the 16th, and 0.08 inches of snow on the 17th, and that there was

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no recorded precipitation at the Heavenly Mountain Resort (a ski resort about a mile from

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TRPA’s Stateline, Nevada office) February 14th through 16th, and three inches of snow on the

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17th. Plaintiff alleges that the drive to TRPA’s office would take “1-1/2 hours in good weather.”

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The Court previously took judicial notice that the normal driving time for the 5.3 miles between

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Skyland and TRPA’s office at 128 Market Street, Stateline, Nevada is approximately ten

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minutes. Plaintiff has clarified in the FAC that he was staying at his home in Smith at the time,

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not his second home in Skyland, and that the snowfall occurred between Smith and Skyland.

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The Court granted a motion to dismiss the Complaint, because Plaintiff had not alleged

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facts indicating standing. Specifically, he had only alleged that he used the affected area in the

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past, not that he had any particular plans to use it in the future. See Lujan v. Defenders of

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Wildlife, 504 U.S. 555, 559–64 (1992). In the FAC, Plaintiff alleges that he has visited Genoa

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Peak Plan Area 060 (TRPA’s designation for the area) 24 times in 2018, passing the site of the

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Project 17 times, and that he plans to continue using the area. The Court denied a motion for a

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temporary restraining order because of a low chance of success on the merits and because the

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balance of hardships did not favor him. The Court now denies the motion for a preliminary

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injunction for the same reasons and again dismisses for lack of standing.

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II.

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DISCUSSSION
Article III of the Constitution grants judicial power to the United States to determine

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“Cases” and “Controversies” between various parties. See U.S. Const. art. III, § 2. This limits

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the matters judiciable by federal courts to those under which a plaintiff has “standing” to sue.

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Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–60 (1992). The “irreducible constitutional

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minimum of standing” is: (1) an “injury in fact”; that is (2) “fairly traceable” to the challenged

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action of the defendant; and which can (3) “likely” be “redressed by a favorable decision.” Id. at

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560–61 (internal quotations marks and alterations omitted). Congress may not waive or reduce

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these requirements, but it may enact statutes creating legal rights that would not otherwise exist

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and the invasion of which constitutes an intangible yet “concrete” injury—an injury that

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“actually exist[s]”—constituting an “injury in fact” for the purposes of standing. Spokeo v.

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Robins, 136 S. Ct. 1540, 1547–49 (2016). “[A] bare procedural violation, divorced from any

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concrete harm,” however, is insufficient to show injury in fact. Id. at 1549.

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The Court previously ruled that standing must be based on actual harm, not the bare

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violation of a procedural right as against TRPA (any violation of which was doubtful based on

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the Complaint, in any case). Plaintiff has now alleged that he has in the past hiked in the area of

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the Project and intends to continue hiking in the area of the Project. Defendants are correct that

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Plaintiff appears mainly aggrieved over the alleged failure of TRPA to follow the law generally

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and certain speculative injuries. He has alleged specific plans to use the affected area, but the

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Court agrees with Defendants that Plaintiff has not alleged that the Project will cause him any

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concrete harm, even assuming he continues to use the area. It is not alleged that the Project will

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prevent Plaintiff from hiking in the area. Nor does he allege that the future cell tower—which is

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to be constructed to resemble nearby pine trees and blend into them—will affect the view of the

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lake or mountains from the area apart from the psychological affect Plaintiff might experience

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simply by knowing there is a cell tower nearby. Plaintiff also acknowledges a gigantic water

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tower in the immediate area of the Project that already interferes with the natural appearance of

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the area much more than a camouflaged cell tower would. Indeed, as Defendants note,

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Plaintiff’s primary complaint is his speculative fear that the cell tower might someday fall over

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onto the water tower and damage it. Plaintiff’s allegations that the aesthetic and recreational

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values of the area will be lessened by the challenged activity are conclusory. See Friends of the

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Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 183 (2000). He has so concluded, but he

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has not alleged facts that if true would lead to that conclusion. He alleges the introduction of a

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cell tower resembling a tree in the midst of an ocean of trees near an already existing

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unconcealed water tower. That, even if true, does not indicate that the aesthetic and recreational

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values of the area will be lessened.
CONCLUSION

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IT IS HEREBY ORDERED that the Motion for Preliminary Injunction (ECF No. 89) is

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DENIED.
IT IS FURTHER ORDERED that the Motion for Leave to File Excess Pages (ECF No.

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97) and the Motion to Dismiss (ECF No. 101) are GRANTED.
IT IS FURTHER ORDERED that the Motion to Dismiss (ECF No. 104) is DENIED as

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moot.

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IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.

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IT IS SO ORDERED.

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Dated this 22nd day of August, 2018.
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_____________________________________
ROBERT C. JONES
United States District Judge

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