Garmong v. Tahoe Regional Planning Agency et al

Filing 83

ORDER that the Motions to Dismiss (ECF Nos. 17 & 34 ) are GRANTED, with leave to amend by 6/7/2018; the Motions to Strike (ECF Nos. 69 & 71 ) are DENIED; and the Motion to Extend Time (ECF No. 59 ) and Objection (ECF No. 60 ) are DENIED as moot. Signed by Judge Robert C. Jones on 5/17/2018. (Copies have been distributed pursuant to the NEF - LH)

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1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 7 8 9 10 11 ______________________________________ ) ) GREGORY O. GARMONG, ) ) Petitioner, ) ) vs. ) ) TAHOE REGIONAL PLANNING AGENCY, ) ) Respondent. ) ) 3:17-cv-00444-RCJ-WGC ORDER 12 This case arises out of the approval of a cell tower project in the Lake Tahoe area. 13 14 Pending before the Court are two motions to dismiss, two motions to strike, and an objection to 15 the Magistrate Judge’s order denying certain limited discovery. 16 I. FACTS AND PROCEDURAL HISTORY 17 Plaintiff Gregory Garmong resides in Douglas County, Nevada near Lake Tahoe. 18 (Compl. ¶¶ 1, 8–10, ECF No. 1). He has sued the Tahoe Regional Planning Agency (“TRPA”), 19 several TRPA employees and officials, Verizon Wireless, Complete Wireless Consulting, Inc. 20 (“CWC”), an employee of CWC, and Crown Castle in this Court, listing twenty-eight causes of 21 action. His claims arise out of TRPA’s grant of a permit to CWC to construct a cell tower within 22 TRPA’s jurisdiction at 811 U.S. Highway 50 (“US 50”) in Douglas County (“the Project”). (Id. 23 ¶¶ 32–33). The Court takes judicial notice that the site of the Project is directly across US 50 24 1 of 6 1 from the Skyland neighborhood where Plaintiff lives, which is about a mile south of the Cave 2 Rock Tunnel on US 50 and a mile north of Zephyr Cove on the east shore of Lake Tahoe. (See 3 id.). The site currently appears free from development except for a water tower. 4 Plaintiff alleges TRPA mailed a notice of the February 23, 2017 hearing on the Project to 5 property owners like him on February 9 (“the Notice”), and that he received the Notice on 6 February 14. (Id. ¶¶ 38–39). The Court takes judicial notice that February 14 was a Tuesday. 7 The Notice indicated that Bridget Cornell was the point of contact for the Project, and that the 8 application for the Project (“the Application”) could be viewed from 9:00 a.m. to 12:00 p.m. and 9 1:00 p.m. to 4:00 p.m. on Mondays, Wednesdays, Thursdays, and Fridays. (Id. ¶ 38). The Notice 10 also indicated that a “staff summary” for the Project could be viewed at www.trpa.org (“the 11 Website”) and at the TRPA office as of February 16. (Id.). Written comments had to be received 12 by February 22 or they would not be considered at the February 23 hearing. (Id.). When Plaintiff 13 checked the Website on 5:20 p.m. on February 16, he was unable to locate any staff summary, 14 although it became available “at some time after that” for a total of less than seven days prior to 15 the hearing. (Id. ¶ 40). 16 Plaintiff does not allege that the Application was not viewable at the TRPA office on 17 Wednesday the 15th, Thursday the 16th, Friday the 17th, Monday the 20th, and Wednesday the 18 22nd. He alleges only that the weather was “very bad” on February 15–17 due to significant 19 snowfall that made it hazardous to drive. (Id. ¶ 41). Plaintiff does not allege any such difficulties 20 on Monday the 20th or Wednesday the 22nd, although TRPA was closed on the 20th for 21 President’s Day. (Id. ¶ 45). The Court takes judicial notice that there was no recorded 22 precipitation at the South Lake Tahoe Airport (approximately twelve miles by road from 23 Skyland) on February 14th or 15th, 0.24 inches of snow on the 16th, and 0.08 inches of snow on 24 2 of 6 1 the 17th. There was no recorded precipitation at the Heavenly Mountain Resort (a ski resort 2 about a mile from TRPA’s Stateline, Nevada office) February 14th through 16th, and three 3 inches of snow on the 17th. Plaintiff also alleges that the drive to TRPA’s office would take “1- 4 1/2 hours in good weather.” (Id. ¶ 42). But the Court takes judicial notice that the normal driving 5 time for the 5.3 miles between Skyland and TRPA’s office at 128 Market Street, Stateline, 6 Nevada is approximately ten minutes. 7 Plaintiff lists twenty-eight claims: (1)–(3) due process violation due to bias; (4), (6) due 8 process violation due to denial of the right to be heard; (5), (7), (9) due process violation due to 9 TRPA’s failure to give reasons; (8) due process violation due to intermingling of investigative 10 and decision-making functions; (10) fraud; (11) civil rights conspiracy; (12) declaratory 11 judgment that CWC is not qualified to do business in Nevada; (13) due process violations due to 12 TRPA’s failure to follow its procedural regulations; (14) declaratory judgment that the Project is 13 not permitted under TRPA; (15)–(20) declaratory judgment that TRPA failed to investigate and 14 make findings on issues of noise, safety, general welfare, land coverage limits; (21)–(22) 15 declaratory judgment that the Project exceeds cell tower height limits under TRPA; (23) 16 intentional infliction of emotional distress; (24) unjust enrichment; (25)–(27) “general 17 constitutional challenges”); and (28) civil penalties for violations of TRPA. Defendants have 18 filed two motions to dismiss. All Defendants appear to be included in the motions or joinders 19 thereto. 20 II. 21 DISCUSSION The Court decides the motions under the doctrine of standing. Article III of the 22 Constitution grants judicial power to the United States to determine “Cases” and “Controversies” 23 between various parties. See U.S. Const. art. III, § 2. This limits the matters judiciable by federal 24 3 of 6 1 courts to those under which a plaintiff has “standing” to sue. Lujan v. Defenders of Wildlife, 504 2 U.S. 555, 559–60 (1992). The “irreducible constitutional minimum of standing” is: (1) an 3 “injury in fact”; that is (2) “fairly traceable” to the challenged action of the defendant; and which 4 can (3) “likely” be “redressed by a favorable decision.” Id. at 560–61 (internal quotations marks 5 and alterations omitted). Congress may not waive or reduce these requirements, but it may enact 6 statutes creating legal rights that would not otherwise exist and the invasion of which constitutes 7 an intangible yet “concrete” injury—an injury that “actually exist[s]”—constituting an “injury in 8 fact” for the purposes of standing. Spokeo v. Robins, 136 S. Ct. 1540, 1547–49 (2016). “[A] bare 9 procedural violation, divorced from any concrete harm,” however, is insufficient to show injury 10 11 in fact. Id. at 1549. It is critical to specify the nature of Plaintiff’s claimed injury. Apart from his generalized 12 grievances that TRPA failed to follow the law, Plaintiff relies on alleged violations of his 13 procedural right to be heard before TRPA, not on any violation of his right to hike in the area 14 without having to look at a cell tower. The Complaint does not allege an injury as to the latter 15 putative right. Plaintiff alleges that he “was an avid hiker and often used the land in the area of 16 the Project for recreational purposes.” (Compl. ¶ 10, ECF No. 1). But past use is insufficient to 17 show injury from a development in the area, and a claim of future use must include concrete 18 plans, not “‘some day’ intentions.” Lujan, 504 U.S. at 564. Plaintiff alleges only past use of the 19 area and does not allege any intent to use the area in the future, even speculatively. 20 Plaintiff identifies a statutorily created procedural right: 21 Any aggrieved person may file an action in an appropriate court of the States 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 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 authorized 22 23 24 4 of 6 2 representative, or in writing, before the agency at an appropriate administrative hearing to register objection to the action which is being challenged, or who had good cause for not making such an appearance. 3 Compact art. VI(j)(3), Pub. L. 96-551, 94 Stat. 3233 (1980). The Court need not delve into the 4 intricacies of Plaintiff’s allegations concerning difficulties in participating in the hearing process, 5 however, because the only harm he alleges is procedural, and a bare procedural violation cannot 6 support Article III standing unless it results in some concrete harm, even if that additional 7 concrete harm is intangible. See Spokeo, 136 S. Ct. at 1549–50. 1 8 In Spokeo, the concrete harm was the material risk of transmission of inaccurate 9 information about one’s credit history. Robins v. Spokeo, Inc., 867 F.3d 1108, 1113–14 (9th Cir. 10 2017) (on remand). In evaluating a plaintiff’s standing to pursue violations of statutorily created 11 rights, a court asks “(1) whether the statutory provisions at issue were established to protect his 12 concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific 13 procedural violations alleged in this case actually harm, or present a material risk of harm to, 14 such interests.” Id. at 1113. Here, the Court can assume the procedures mandated by TRPA, 15 whatever they are, were established to protect concrete interests. But Plaintiff has not alleged 16 any material risk of harm to such interests. His grievance against the Project is precisely the kind 17 of generalized grievance the Supreme Court has rejected as insufficient to create Article III 18 standing. The putative harm underlying the alleged procedural violations here is the approval of 19 the Project, i.e., the construction of a cell tower in a location where Plaintiff would rather not 20 look at one. But as noted, supra, Plaintiff has not alleged any concrete (or even speculative) 21 future plans to use the affected area for hiking or otherwise. He alleges only that he used the 22 affected area for hiking in the past. The approval of the Project therefore resulted in no concrete 23 harm to Plaintiff’s property or liberty interests that TRPA’s procedures may have been designed 24 5 of 6 1 to protect, even assuming for the sake of argument that Defendants violated some procedural 2 right under the Compact (or some fundamental procedural right that would be due even in the 3 absence of the Compact). 4 And although the Court need not yet fully analyze the issue, the Complaint appears to 5 indicate that no procedural rights were violated, anyway. Plaintiff affirmatively alleges he was 6 notified of, submitted comments prior to, and appeared at the February 23, 2017 hearing at which 7 TRPA approved the Project. (Compl. ¶¶ 22–23, 28–29). Plaintiff’s allegations concerning 8 personal difficulties in participating—which are of dubious veracity, in any case, see supra—do 9 not implicate due process. CONCLUSION 10 11 12 13 14 IT IS HEREBY ORDERED that the Motions to Dismiss (ECF Nos. 17, 34) are GRANTED, with leave to amend within twenty-one (21) days of this Order. IT IS FURTHER ORDERED that the Motions to Strike (ECF Nos. 69, 71) are DENIED, and the Motion to Extend Time (ECF No. 59) and Objection (ECF No. 60) are DENIED as moot. 15 IT IS SO ORDERED. 16 17th day of May, 2018. Dated this 27th day of March, 2018. 17 18 _____________________________________ ROBERT C. JONES United States District Judge 19 20 21 22 23 24 6 of 6

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