MINUTES OF MEETING
ASSEMBLY COMMITTEE ON GOVERNMENT AFFAIRS
Sixty-seventh Session
February 3, 1993
The Assembly Committee on Government Affairs was called to order by Chairman Val Z. Garner at 8:04 a.m., Wednesday February 3, 1993, in Room 330 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Mr. Val Z. Garner, Chairman
Mr. Rick C. Bennett, Vice Chairman
Mrs. Kathy M. Augustine
Mr. Douglas A. Bache
Mrs. Marcia de Braga
Mrs. Vivian L. Freeman
Mr. Lynn Hettrick
Mrs. Erin Kenny
Mrs. Joan A. Lambert
Mr. James W. McGaughey
Mr. Roy Neighbors
Mrs. Gene W. Segerblom
Mr. Wendell P. Williams
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Dana Bennett
OTHERS PRESENT:
Mr. Fred Welden, Legislative Council Bureau; Mr. David Ziegler, Tahoe Regional Planning Agency (TRPA); Mr. Steve Teshara, Lake Tahoe Gaming Alliance; Ms. Mary Gilanfarr, Tahoe-Sierra Preservation Council; Mr. Joe Johnson, Sierra Club; Mr. Jim Gallaway, Board of Directors, League to Save Lake Tahoe.
ASSEMBLY JOINT RESOLUTION 3 - Urges Tahoe Regional Planning Agency to consider certain factors in regulating development in the Lake Tahoe Basin.
Mr. Fred Welden, Research Division, Legislative Council Bureau, gave a brief summary of the resolution. He was the staff person to the Interim Committee that developed the resolution. Mr. Welden stated the resolution combined four specific topics the committee wished to make input on.
Mr. David Ziegler, Tahoe Regional Planning Agency (TRPA), testified in support of AJR 3.
Mr. Steve Teshara, Executive Director of Lake Tahoe Gaming Alliance, indicated AJR 3 had several important issues to be addressed. He felt the scenic criteria TRPA had developed was not as objective as indicated by the resolution, since scenic quality was a subjective issue and reaching an objective set of criteria would be difficult in that area. Mr. Teshara commented when testimony was given to the oversight committee concerns were expressed about the scenic side of things. He cited the casino properties on the south shore had been working over three years with the Agency to develop a sign ordinance.
Mr. Teshara stressed the alliance was very supportive of sections two and four of AJR 3 and urged the legislature to encourage TRPA's continued involvement in the Lake Tahoe Economic Round Table.
Ms. Mary Gilanfarr, Executive Director of Tahoe-Sierra Preservation Council, testified in favor of AJR 3. She stated the council was an organization representing approximately 3,000 members, most of whom were owners of small residential properties in the basin, having owned their property between 15 and 40 years.
Ms. Gilanfarr indicated over 89 percent of the basin was in public ownership, administered by the forest service and state parks, and 10 percent was private ownership. She said only about half of the 10 percent in private ownership was actually developed and only about 300 acres would be developed over the next 15 years.
Ms. Gilanfarr commented there had been an immense impact on property values due to TRPA regulations, in some cases the values had gone up due to scarcity and demand but in many cases had gone down because lots among existing houses were determined to be unbuildable.
Addressing specific points, she stated the Individual Parcel Evaluation System (IPES) was intended as a formula which would remove the most sensitive lots from the building stream and allow the most buildable lots to be built first. She indicated the idea of this was as the top numbers were used up and the bottom numbers were removed and retired from the system by the public buyout programs, the environmental thresholds would not be exceeded by continued building and the IPES line would give equity to people whose properties were determined to have environmental problems. Ms. Gilanfarr declared, "there has been no such equity, in five years there has been no movement of the IPES line..." She said the council appreciated the encouragement of TRPA to be more active in moving the IPES line.
Mr. Joe Johnson, representing the Sierra Club, spoke in favor of AJR 3 stating he had a problem with the degree of importance placed on the economy, specifically in addressing the Economic Roundtable. He objected to the language which assumed any action would be solely judged on its economic benefit by saying there would be no damage to the economy. Mr. Johnson felt there had been and would be activity which might be adverse to a particular segment of the economy and felt this should be weighed. Mr. Johnson asked that AJR 3 be amended to state economic factors would be considered, but would not be the dominating issue. Other than that issue, the Sierra Club supported AJR 3.
Mr. Jim Gallaway, Board of Directors, League to Save Lake Tahoe, testified in opposition to all three resolutions.
There being no further testimony, Chairman Garner closed the hearing on AJR 3, stating there would be no action until further information could be obtained.
ASSEMBLY JOINT RESOLUTION 4 - Urges Tahoe Regional Planning Agency to determine whether it is authorized to establish procedures to grant variances from its ordinances for certain projects, and, if authorized, to establish those procedure.
Mr. Fred Welden, Research Division, Legislative Council Bureau, gave a brief summary of the resolution. Mr. Welden said variances were typical tools used in planning to provide flexibility from strict enforcement of regulations when there was an undue hardship. He stated this was a highly controversial topic in planning, variances were typically tied to a specific piece of property and the characteristics of that property which would make it an undue hardship on the person owning it to live within the strict interpretation of a given ordinance.
Mrs. Freeman asked Mr. Welden what information would be provided regarding TRPA and variances to someone who bought a piece of property at the lake.
Mr. Welden replied he was not completely versed in that area, but his understanding was it was primarily up to the real estate agent to make the property buyer aware of restrictions and programs in the basin.
Chairman Garner indicated there were full-disclosure statutes on the books which require those kinds of things to be disclosed in the real estate area.
Mr. David Ziegler, Tahoe Regional Planning Agency, testifing in support of AJR 4, spoke in depth regarding variances. He said "variance" had a specific meaning in planning and zoning law, which basically created a new non-conformity. He pointed out NRS 278.270 to 278.317 was an entire section covering variances. He referenced the classic application of variances as described in NRS 278.300, section 1, subsection c. Mr. Ziegler noted variances were meant to create equity among property owners, not to provide property owners with special treatment. Mr. Ziegler gave a brief background of TRPA responsibilities and a description of how variances might apply in the Tahoe region. He indicated TRPA had discussion with legal counsel about variances and the preliminary opinion from legal was they would allow variances only in non-threshold categories or situations, the thresholds could not be amended by variance as they were absolute standards.
Chairman Garner asked Mr. Ziegler to expand on the meaning of "threshold."
Mr. Ziegler stated the Tahoe Regional Planning Compact required TRPA to identify and adopt environmental threshold carrying capacities for the region. The compact defined those as environmental standards for the Tahoe region, thus the TRPA was a standard-setting agency and had adopted air, water, soil conservation, noise and other standards and the use of variances would be applied only to non-threshold areas, such as land use, allowable use, special uses, density, setbacks, height, signage, etc.
Mr. Ziegler indicated the TRPA had five concerns about the variances.
1. Literature on variances nationwide showed variances appear subject to abuse and some states, cities and counties had moved to eliminate or limit variances because they tended to lead zoning bodies into granting exceptions to zoning provisions.
2. Variances would create administrative burden and workload impact for TRPA: a variance ordinance would have to be created, it would be controversial, variance procedures would have to be implemented and a hearing officer would be needed.
3. Variance denial would possibly expand litigation exposure.
4. TRPA variance procedures would have to interface with local statutes and procedures of the five counties and one incorporated city in the area, each with its own variance procedure.
5. The TRPA felt variances should not be necessary. An alternative would be to amend the regional plan as problems arose, such as amending the plan to provide additional height for public service structures, additional density for affordable housing and adjusting zoning maps from time to time. The TRPA had taken action like this on average once a month to deal with implementation of the code. Amendments would be generic rather than project specific, avoiding special treatment.
Mr. Ziegler summed up by stating the TRPA support of AJR 4 was limited to non-threshold standard matters, with a number of concerns on the variance concept but he indicated the TRPA would give strong deference to the desires of the committee and legislature.
Mrs. Segerblom asked Mr. Ziegler if he had testified during the oversight committee hearings.
Mr. Ziegler replied members of TRPA had testified at all four committee hearings and he had made an effort during these proceedings to be consistent with past testimony. He indicated his testimony at the oversight hearings had not gone into great depth about variances as he had not looked into them at the time.
Mrs. Freeman asked if there had been a lot of testimony in the oversight committee in favor of variances.
Mr. Ziegler indicated he did not recall the specific testimony which led to this resolution.
Mr. Welden clarified there was testimony from some interest groups adamantly opposed to the idea of variances being allowed in the basin, and some interest groups who very much supported it.
Mrs. Freeman felt there was an inconsistency between resolution AJR 2 which urged TRPA not to adopt additional regulations and AJR 4 which stated they should.
Mr. McGaughey asked if Mr. Ziegler felt variance requests would come more from the residential section than commercial.
Mr. Ziegler replied the volume of permit activity in the residential area was higher than in other areas.
Chairman Garner questioned the procedure for people who wanted to remodel or put additions on their homes.
Mr. Ziegler stated a lot of remodels and certain additions were exempt from review. He said, "I would think that where we might get involved in a variance, someone might apply to modify a single family home, and for example, reduce the number of off-street parking places. And then, we would run afoul of our requirements to provide a certain number of off-street parking places and a conflict could arise there, and perhaps a variance might be okay in a situation like that, it might not, we would just have to consider it when it came up."
Mr. Hettrick asked how many lawsuits the TRPA had over the past years regarding variances.
Mr. Ziegler replied there had not been any litigation regarding variances.
Mr. Hettrick inquired how the TRPA determined whether a development or variance request on a single parcel exceeded a threshold.
Mr. Ziegler answered one of his concerns was he did not think it possible to draw a sharp line and differentiate what was threshold related and what was not. He indicated the TRPA has scenic quality threshold standards for travel routes.
Mr. Hettrick asked if a variance was not allowed, what options would a property owner have.
Mr. Ziegler explained anyone is free to file an application for a regional plan amendment.
Further discussion was held between Mr. Hettrick and Mr. Ziegler involving procedures for amending the code and further recourse by property owners.
Mrs. Kenny questioned if lack of finances of individuals or companies to comply with variances or requests for a variance because of finances was ever an issue. She inquired what the procedure would be if someone could not follow through with a variance because of monetary constraints.
Mr. Ziegler felt it could be an argument by an applicant and some planning textbooks encouraged planners to be very "cold-hearted" with respect to those situations as they could lead one into the trap of giving special treatment in special circumstances. He stated if there was a group of people who were all affected in the same way, and the governing board felt the rule in that application was unfair, the board could amend the regional plan to take care of the problem and it would be more efficient to do it that way than to handle variances one by one.
Chairman Garner indicated there would be further opportunity for questions, and felt questions and answers should be kept brief in order to allow those opposed to the resolution an opportunity to speak.
Mrs. Segerblom inquired if the TRPA had problems with variances granting heights of homes ruining others' view.
Mr. Ziegler stated that situation had come up before the governing board numerous times, and the board had consistently held they could not be responsible for someone constructing a legal structure and obstructing someone's view.
Mr. Steve Teshara, Executive Director of Lake Tahoe Gaming Alliance, stated the gaming alliance was offering their support of this resolution because it sent a message to TRPA. He reiterated some of the points Mr. Ziegler had previously made.
Mr. Hettrick agreed with the comments made by Mr. Ziegler and Mr. Teshara and indicated the resolution did not say anything about the variance going over the threshold. Mr. Ziegler concurred.
Ms. Mary Gilanfarr, Executive Director of Tahoe-Sierra Preservation Council, stated if variance procedures were intended to create equity among similar properties or address the diverse nature of properties, it was also a recognition that no generalized rule or zoning map could cover the various elements within it as most lots in the basin differed in some way from every other lot.
Ms. Gilanfarr pointed out the height limit rules had changed about seven times in the past ten years and felt if there were a variance to height limits it should be to hold them in accordance with other rules. She stated the purpose of a variance is to make application to a special situation.
Ms. Gilanfarr gave an overview of structure design in the basin based on the current limitations. She indicated building to the limitations had created a negative impact on the quality of design and diversity of structure as a result of the interaction of land coverage requirement, height requirement and setbacks.
She concluded while the council would not support large scale increases in density or coverage they felt there could be some flexibility and if a variance procedure was the proper way to do that, it would allow a person an avenue to work through the rule.
Mrs. Freeman asked how a buyer going into the basin to purchase a lot would know where to go to become informed of the rules and regulations inherent in buying.
Ms. Gilanfarr replied the real estate agent should either give the information necessary or direct the person to a consultant who would work with the buyer.
Mr. Joe Johnson, representing the Sierra Club, spoke in opposition to AJR 4. He felt ACR 3 and AJR 4 were somewhat interrelated. Mr. Johnson referenced the five issues of concern Mr. Ziegler enumerated. Mr. Johnson expressed the opinion that those home or lot owners with greater understanding of the variance procedure and larger revenue would be more likely to achieve a variance, while the person with little or no understanding or revenue might not.
Mr. Jim Gallaway, Board of Directors, League to Save Lake Tahoe, testified in opposition to all three resolutions.
There being no further testimony, Chairman Garner closed the hearing on AJR 4, stating there would be no action until further information could be obtained.
ASSEMBLY CONCURRENT RESOLUTION 3 - Urges Tahoe Regional Planning Agency to continue to increase efforts to simplify its ordinances and procedures.
Mr. Fred Welden, Research Division, Legislative Council Bureau, gave a brief summary of the resolution.
Mr. David Ziegler, Tahoe Regional Planning Agency, testified in support of ACR 3. Mr. Ziegler commented the TRPA sees streamlining as an environmental protection strategy as it would increase their efficiency and allow them to redirect resources from small projects such as residential additions to larger projects which required more attention such as a marina or ski area master plan. He felt streamlining would build goodwill in the region as implementation of the regional plan depends on cooperation of the people who live and work in the region. Mr. Ziegler referenced the newsletters handed out in the February 2, 1993 meeting which contained a number of articles regarding streamlining.
Mr. Steve Teshara, Executive Director of Lake Tahoe Gaming Alliance, gave testimony in support of ACR 3. He stated he felt this resolution was intended to encourage TRPA to move them more rapidly toward the delegation, streamlining and memorandum of understanding process. He indicated this dealt with some of the issues previously addressed on variances.
Mr. Teshara said it was difficult for the individual property or business owner to understand the procedure involved and criteria necessary in order to file an application for variance. In some cases the person might decide to build a "midnight deck" or "Sunday garage," bypassing the application because there were too many rules, regulations and permits necessary for a simple addition. He indicated in thinking about the regulatory maze from the viewpoint of the property owner, it would make better sense to streamline the process and work with local governments.
Mr. Joe Johnson, representing the Sierra Club, spoke with modified support for ACR 3 in opposition to AJR 4. Mr. Johnson suggested many of the problems would best be addressed by reviewing the underlying rules and regulations. He indicated the harm experienced by the single home or lot owner should be addressed within the rules rather than asking each individual site to be reviewed. Mr. Johnson stated equity and parity in the system would be made by having performance-based rules and regulations since the underlying threshold values were rather fluid and difficult to interpret. Mr. Johnson asked that an addition be made to ACR 3 stating there would be a direction within the simplification process which would make standards more performance-based and sensitive to mitigation.
Chairman Garner questioned whether Mr. Johnson had his proposed amendments in writing. Mr. Johnson indicated he did not and Chairman Garner suggested he do so as it would make it easier for the committee to consider them.
Chairman Garner asked if Mr. Johnson had presented testimony to the Interim Study Committee. Mr. Johnson stated he personally did not testify, and was not aware if any representative of the Sierra Club had testified.
Chairman Garner inquired of Mr. Welden if opposition had been considered to these resolutions in the Interim Study Committee.
Mr. Welden replied there was quite a diversity of opinion on the variance proposal of AJR 4, some heavy testimony in favor of variance and substantial testimony in opposition as well. He stated there had been fairly controversial testimony relative to the scenic management segment of AJR 3, but thought it had been worked out by the end of the study.
Lengthy discussion ensued between the committee and Mr. Johnson relating to ACR 3 and AJR 4.
Mr. Jim Gallaway, Board of Directors, League to Save Lake Tahoe, testified in opposition to all three resolutions. Mr. Gallaway pointed out with the nationwide spread of gaming, Nevada's long-term tourism and economic development would need to seek other forms of revenue and Lake Tahoe was probably the best area of tourist revenue after gaming in northwest Nevada and should be considered a national treasure. Mr. Gallaway stated if one looked at the vacant commercial and residential properties available in the basin one should be able to live under current TRPA plan requirements and the 1987 compact. He did not think any of these resolutions needed to be passed because TRPA was making progress along most of those lines.
Mrs. Freeman indicated there was no one on the committee who had attended the previous hearings and gave a brief statement on her views of the three resolutions.
Chairman Garner requested comments be held until such time as a vote would be taken.
Mr. McGaughey discussed previous sessions attended by Mrs. Lambert and himself with Mr. Gallaway.
Mrs. Segerblom suggested the committee obtain a list of who was on the previous committees. Mr. Welden indicated he would provide the list.
There being no further testimony, Chairman Garner closed the hearing on ACR 3, stating there would be no action until further information could be obtained.
There being no further business to come before committee, the meeting was adjourned at 10:05 a.m.
RESPECTFULLY SUBMITTED:
LINDA FEATHERINGILL
Committee Secretary
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Assembly Committee on Government Affairs
February 3, 1993
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