Incline Village, NV…At the January 26th TRPA meeting held at the Château in Incline Village the TRPA board approved the action below…

January 19, 2011
To:
TRPA Governing Board
From:
Nicole Rinke, General Counsel; Scott Lichtig, Associate Attorney
Subject:
Resolution of Enforcement Litigation, TRPA v. Edgar “Red” Roberts
(Case No. 3:09-CV-376-LRH-RAM, D.NV)
Proposed Action: Staff proposes the resolution described herein to settle litigation
initiated by the Agency against Edgar “Red” Roberts (“Roberts”) for violations on his
property at 1200 Highway 50, Douglas County, Nevada (APN 1418-34-301-001)
(“Roberts Property”) and the neighboring property owned by the Ledbetter Marital Trust
at 1192 Highway 50, Douglas County, Nevada (APN 1418-34-301-007) (“Ledbetter
Property”). The violations relate to Roberts’s reconstruction of a rockwall in the
shorezone of the 2 properties without the necessary permits and importation of
significant quantities of fill into the shorezone.
Recommendation: Staff recommends that the Governing Board approve the conceptual
settlement reached between Roberts and the Agency in the settlement conference
before Magistrate Judge McQuaid for the United States District Court, District of Nevada
on January 5, 2011. The terms of the settlement, as set forth in this staff summary and
in the sealed transcript of the settlement conference, involve modification of the rockwall
and a penalty of $120,000.
Required Motion: In order to approve the proposed violation resolution, the Board must
make the following motion, based on this staff summary and the evidence in the record:
A motion to approve the Settlement Agreement as described in Attachment B.
In order for the motion to pass, an affirmative vote of any 8 members of the Board is
required.
Violation Description/Background: In 2008, over a period of approximately 28 days,
Roberts reconstructed a rockwall in the shorezone of his Property without the necessary
TRPA permits and in violation of TRPA’s construction and design standards.
Specifically, Roberts imported over 200 tons of 9 to 12 inch diameter granite rock into
the shorezone to create a sloping rockwall revetment. Roberts arranged this fill material
on an angle that extended the mass of the shorezone structure approximately 10 feet
lakeward of the previously existing vertical rockwall that roughly followed the high-water
line. Roberts also extended the wall onto the Ledbetter Property and imported fill into
the backshore to replace and stabilize areas of the backshore that had eroded behind
the rockwall on his property. During the course of the construction, Roberts operated
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Roberts Staff Summary
January 26, 2011
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heavy equipment in the shorezone, relocated sand within the foreshore, and failed to
install temporary construction BMPs. Because Roberts never submitted a permit
application to TRPA, the Agency did not perform the necessary review for structural
integrity or for scenic compliance of the resulting structure. The specific violations of
TRPA’s Code of Ordinances (“Code”) associated with Roberts’s unauthorized project are
described in Attachment A.
Significantly, Roberts has admitted to TRPA that he was both aware that: (1) a TRPA
permit was required to undertake the shorezone project and (2) reconstruction of the
rockwall further into the shorezone, as conceived and eventually built, was prohibited by
TRPA’s construction and design standards. Roberts went forward with the project
despite this knowledge that he was violating TRPA’s Compact and Code. From the
beginning, TRPA staff has recognized the importance that Mr. Roberts be penalized
appropriately in order to deter him and others from similarly deciding to purposefully
ignore TRPA’s environmental regulations.
Summary of Litigation: Through an anonymous complaint, TRPA discovered the
violations on the Roberts Property in early December 2008. For 6 months, TRPA Staff
diligently worked with Roberts to negotiate a violation resolution. However, after first
agreeing to waive TRPA’s 65-day statute of limitations, Roberts refused to sign an
additional waiver that would have allowed settlement negotiations to continue. As a
result, TRPA, as authorized by the Legal Committee, filed a Complaint against Roberts
in the District Court of Nevada in July 2009.
Upon the initiation of litigation, TRPA continued to work with Roberts to resolve the
violations and, as such, stipulated to extend the time for Roberts to file an Answer until
December 2009. Unfortunately, additional negotiations were unsuccessful. Roberts
retained legal counsel and filed his Answer on December 21, 2009, denying all claims
against him.
On March 10, 2010, representatives of the Ledbetter Marital Trust filed a motion to
intervene in the litigation due to the encroachment of the reconstructed rockwall onto
their property. Magistrate McQuaid agreed with the position taken by TRPA and the
Ledbetter Marital Trust and granted the request to intervene.
Upon receiving initial disclosures from Roberts in June 2009, TRPA discovered that the
extent of the violation committed on the Roberts Property was even greater than
originally believed. Specifically, newly submitted pictures revealed that the amount and
areas into which Roberts imported fill was significantly greater than alleged in TRPA’s
original Complaint. Subsequently, TRPA petitioned the court to include these newly
discovered violations as well as the full scope of Roberts’s unauthorized activities that
occurred on the Ledbetter Property in the pending action. Despite standard practice,
Roberts refused to stipulate to the amended pleading and opposed TRPA’s request.
After a full briefing of the merits, Magistrate McQuaid granted TRPA’s petition to file its
First Amended Complaint on October 14, 2010.
At the October 14, 2010 hearing, TRPA, Roberts, and the Ledbetter Marital Trust agreed
to participate in a settlement conference supervised by Magistrate McQuaid in order to
resolve this matter before additional resources were expended on discovery, motion
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Roberts Staff Summary
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practice, and trial. The Parties stipulated to stay all discovery and motion deadlines until
after the conference, which was scheduled for January 5, 2011.
Summary of Proposed Resolution: At the settlement conference on January 5, 2011 the
parties agreed upon a settlement, pending approval by this Board, to resolve the
violations that occurred on the Roberts and Ledbettter Properties. The proposed
resolution, set forth in full in Attachment B, involves: (1) rehabilitation of the rockwall
pursuant to a TRPA permit and (2) payment of a monetary penalty of $120,000. The
Court will retain jurisdiction over the matter and has mandated full compliance with the
settlement terms by August 1, 2011.
Rehabilitation of the Rockwall: Under the proposed settlement, Roberts is required to
submit a permit application to TRPA that includes a rehabilitation plan for the sloping
rockwall. The proposed rehabilitation plan must ensure the rockwall’s structural stability
while also reducing the lakeward encroachment of the rockwall to the minimum amount
necessary to achieve such stability. The proposal must also bring the shorezone
structure into compliance with TRPA’s scenic requirements.
In developing the rehabilitation requirement, TRPA Staff evaluated many different
options to determine the best outcome for Lake Tahoe’s shorezone. TRPA believes this
is the best result because it minimizes the encroachment of the structure into the
foreshore while also providing for stability and scenic compliance. In addition, it retains
the sloping design of the shorezone protective structure, which allows for the natural
dissipation of wave energy and is, therefore, environmentally preferable to the vertical
structure that previously existed on the Roberts Property. Further, the rehabilitation
agreed upon minimizes the future disturbance of the shorezone by allowing the
reconstructed wall to remain with modifications, rather than requiring the removal of the
wall and rehabilitation of the pre-existing wall, activities that would necessarily involve a
significantly greater disturbance of the environmentally sensitive shorezone.
Monetary Penalty: Under the proposed settlement, Roberts must pay TRPA a monetary
penalty of $120,000. Staff believes that a $120,000 penalty is appropriate given the
nature of the violations committed. TRPA’s Compact authorizes penalties of up to
$5,000 per violation of TRPA’s regulations, plus an additional $5,000 for each day that
the violation persists. The Compact also directs the Agency to increase penalties for
willfull and/or knowing violations of the applicable rules. Based on these factors, TRPA
staff recommends the penalty of $120,000 because (1) it is sufficient to penalize Roberts
for the environmental harm caused by the unauthorized project; (2) it is sufficient to
punish Roberts for his knowing and willful violations of TRPA Code and will deter others
from similarly disregarding TRPA’s regulations, and (3) the amount proposed is
consistent with past violations.
A $120,000 penalty is appropriate given the nature of the unauthorized construction
activity in the shorezone and its resulting effects. Roberts’s unauthorized reconstruction
project violated at least 10 provisions of TRPA’s Code. All but one of these violations
was continuing during the 28-day construction period, and 5 violations continue to
persist on the ground today, 808 days after commencement of the project. While, under
a strict reading of the Compact, TRPA could seek a penalty in Court far exceeding this
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Roberts Staff Summary
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proposal, staff recommends the $120,000 as appropriate given the extent of the
violations and environmental harm attributable to the unauthorized construction project.
Most significantly, TRPA staff recommends approval of the $120,000 penalty because it
appropriately reprimands Roberts for his knowing and willful violations of TRPA’s
regulations and will also sufficiently deter similar future intentional violations. By his own
admission, Roberts was aware that (1) the shorezone project required environmental
review and a TRPA permit, and (2) the extension of the existing vertical shorezone
protective structure lakeward into the foreshore violated TRPA’s design and construction
standards. In fact, Roberts contacted TRPA many years earlier to discuss such a
project and was correctly told by staff that the project was likely unpermittable. Despite
this knowledge, Roberts nonetheless reconstructed the shorezone rockwall without a
TRPA permit and in violation of the Agency’s standards.
Compliance with TRPA’s Code is critical to TRPA’s ability to uphold the Compact’s
mandate that the Agency maintain and achieve its environmental threshold carrying
capacities. Knowing and willful violations of these important regulations are particularly
offensive and cannot be tolerated by the Agency. People must be aware that, should
they decide to purposefully ignore TRPA’s environmental regulations, they will be
subject to a serious financial penalty. TRPA believes that the penalty imposed through
this settlement will serve the dual purpose of sufficiently penalizing Roberts for his
actions, while also serving as a significant deterrent for others.
Finally, the penalty proposed is commensurate with the financial penalties imposed by
the Agency for past similar violations. For example, in 2002 TRPA settled enforcement
litigation involving the unauthorized construction of an off-shore breakwater without the
necessary review or approval by TRPA (Tahoe Reg’l Planning Agency v. Gonzales,
District of Nevada Case No. CV-N-02-0378 ECR (VPC)). Pursuant to the settlement,
Gonzales was required to remove the unpermitted shorezone structure and forfeit to
TRPA a monetary fine of $145,000, plus a $75,000 payment to TRPA’s education fund.
While Gonzales’s creation of an unauthorized break-water is comparable in many ways
to Roberts’s reconstruction of the rockwall, the violations are distinct enough to warrant a
lower penalty in the Roberts matter. Specifically:
•
Gonzales did not reconstruct an existing structure, but rather constructed
an entirely new breakwater in the shorezone.
•
The size of the offending structure and its corresponding negative
environmental impact in the Gonzales matter were substantially greater
than the structure and impact of the violation on the Roberts Property.
•
Gonzales also constructed an unpermitted boat lift and catwalk on the
offending structure.
TRPA therefore believes that a lesser penalty of $120,000 is appropriate for Roberts and
commensurate with the Gonzales precedent given the nature of the particular offenses.
If there are any questions regarding this agenda item, please contact TRPA General
Counsel Nicole Rinke at (775) 589-5286 or via e-mail at: nrinke@trpa.org.
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Roberts Staff Summary
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Attachment A – Code Violations
In the course of reconstructing the rockwall, Roberts committed the following violations
of TRPA’s Code. Many of these violations were continuing for the 28-day period of
construction and many remain present today, 808 days after commencement.
•
Code § 52.3.E: An activity in the shorezone or lakezone which is not exempt
pursuant to 52.3.B or 52.3.C. is subject to TRPA review and approval. In order to
ensure that projects undertaken in the environmentally-sensitive shorezone do
not interfere with the attainment of environmental carrying capacity thresholds
mandated by the Compact, TRPA approval is required for activities that are not
specifically designated as “Exempt” or “Qualified Exempt.” The major
rehabilitation of an existing shorezone structure is neither “Exempt” nor “Qualified
Exempt” from TRPA’s review and therefore required a TRPA permit.
•
Code § 54.13: Shoreline protective structures may be permitted only upon TRPA
finding that the proposed project will not denigrate environmental thresholds and
is designed and constructed to adequately protect the shorezone. The rockwall
on the Roberts Property is classified as a “shoreline protective structure” under
TRPA’s Code. Because Roberts did not submit a permit application for the
rockwall reconstruction, TRPA did not make the threshold-attainment and design
and construction findings for shoreline protective structures that are required by
the Code.
•
Code § 54.14.B: The placement of fill in the shorezone is prohibited absent
TRPA approval. Roberts imported rocks and soil to fill in the areas both
lakeward and landward of the existing vertical rockwall without a TRPA permit.
•
Code § 54.14.C: The dredging of materials in the shorezone is prohibited except
at those locations where such removal or rearrangement is found by TRPA to be
beneficial to existing shorezone conditions. Roberts’s representative used heavy
construction equipment to dredge sand from the shorezone of the Ledbetter
Property.
•
Code § 54.14.E: Spoil materials from dredging shall not be deposited in the
lakezone or the shorezone. Roberts’s representative subsequently dumped the
sand extracted from the Ledbetter Property into the shorezone of the Roberts
Property.
•
Code § 64.1 & § 4.2.A(4): All grading activities in excess of three cubic yards in
the Tahoe Region require TRPA review and approval. In reconstructing the
rockwall, Roberts caused a total of approximately 225 tons of earthen material to
be graded in both the backshore and the foreshore of the Roberts and Ledbetter
Properties without TRPA authorization.
•
Code § 64.2.A: Excavation, filling, and other disturbances of the soil shall not
occur between October 15 and May 1 of each year. Roberts undertook this
project during TRPA’s annual grading moratorium from October 15 until May 1.
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TRPA prohibits grading during this period because winter storm activity is
common, and the threat for erosion and sediment runoff into Lake Tahoe is
increased.
•
Code § 64.3.C: Temporary erosion control devices are required for all grading
activities. During the grading project, Roberts did not install the requisite erosion
control devices to prevent a discharge to Lake Tahoe.
•
Code § 25.2.A: Temporary erosion control devices are required for all
construction sites. Roberts did not implement erosion control devices in
accordance with TRPA’s Handbook of Best Management Practices (BMPs) on
his construction site. Construction projects that fail to maintain appropriate BMPs
allow sediment discharges and threaten the water quality of Lake Tahoe.
•
Code § 30.15: Projects in the shorezone must undergo a scenic analysis. In
order to uphold TRPA’s scenic resources threshold, the Agency must perform a
scenic assessment and evaluation for all projects within the shorezone. Because
Roberts did not submit an application for his rockwall, TRPA was unable to
analyze its effects on scenic resources.