Judge denies jury for agency challenge; Appeal likely to delay trial | TahoeDailyTribune.com

Judge denies jury for agency challenge; Appeal likely to delay trial

Patrick McCartney

A property-rights group that has fought a decade-long legal challenge by the Tahoe Regional Planning Agency will probably appeal a judge’s ruling denying the group a jury trial.

In a sixth and final pretrial ruling, Judge Edward Reed of the U.S. District Court in Reno denied the request of the Tahoe Sierra Preservation Council to try the complex land-use case before a jury, and will instead hear the case himself.

Reed ruled that the council had waived its right to a jury trial years ago, and cannot assert the right at this time.

But the case, filed in 1984, will not go to trial if the council appeals the ruling, said attorney Lawrence Hoffman.

“We are leaning toward seeking relief from the Ninth District Court of Appeal,” Hoffman said. “We think the right of a jury trial ought to exist for the Tahoe plaintiffs.”

The preservation council lawsuit represents 450 property owners seeking $26 million in damages from regulations adopted by the TRPA that, they contend, reduced or eliminated the use of their land without fair compensation.

Over the years, district courts have dismissed the lawsuit twice, but each time the Ninth District Court of Appeals reinstated the case. Last year, settlement talks broke down and the parties headed back to court.

Susan Scholley, a TRPA attorney, welcomed Reed’s ruling.

“It’s central for us,” said Scholley, who will be leaving the agency and be replaced by an outside counsel. “We’ve been proceeding all these years on the assumption it would be a bench trial. It’s a complex case with complex legal issues. Judge Reed already knows all of the history.”

On Monday, Hoffman denied that the council ever waived its right to a jury trial.

“Based on the operative law at the time, we reluctantly agreed” to a bench trial, Hoffman said, adding that an appeal ruling two years ago has changed the law governing jury trials. “Our clients feel, given the history of the case and the number of times we had to appeal Judge Reed’s decisions, that having a trial before their peers is the best way to assure a full and fair hearing.”

The council also filed an appeal of another Reed ruling that negated claims of damage based on the TRPA’s 1987 Regional Plan. While the ruling does not affect the plaintiff’s case, it would significantly affect the amount of damage they can claim, Hoffman said.

With Scholley leaving the TRPA at the end of this month, the agency’s governing board has hired the San Francisco firm of Shute, Mihaly & Weinberger to represent it as the case heads to court.

The agency hired a second firm, Remy, Thomas & Moose of Sacramento, to represent the agency in two other land-use challenges.

Tahoe Daily Tribune E-mail: tribune@tahoe.com

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