Pier review: Tahoe Regional Planning Agency board overturns decision on Zephyr Cove pier | TahoeDailyTribune.com

Pier review: Tahoe Regional Planning Agency board overturns decision on Zephyr Cove pier

STATELINE, Nev. — Plans for a controversial pier project were washed away Wednesday after a divided vote by the Tahoe Regional Planning Agency Governing Board.

The decision overturning prior approval of the project came after a roughly two-hour debate on, as several board members conceded, a complicated subject.

Jay and Dana Poe were attempting to rebuild a shoreline structure resembling a deck into a 144-foot pier.

In order to do so, the deck would need to be recognized as a legally existing pier, because at the time the proposal was submitted — which was prior to the adoption of a new shoreline plan in October 2018 — TRPA was not issuing permits for new piers. Property owners with an existing pier, however, could apply to rebuild and extend the structure.

TRPA defines a pier as "(a) fixed or floating structure extending from the backshore to beyond the line marking the high water elevation of a lake."

The Poes, who purchased the Cave Rock Cove property on Pittman Terrace in 2016, argued the structure was a legally existing pier that qualified for a rebuild. They pointed to previous documents approved by TRPA that recognized the existence of the structure and surveys indicating it extended beyond the high-water line.

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TRPA staff had doubts about the evidence provided by the Poes and in October 2018 TRPA Executive Director Joanne Marchetta sought guidance from the Governing Board's legal committee.

The committee agreed it was an existing pier and Marchetta ultimately signed off on the Poes' application.

However, one of the Poes' neighbors, Joseph Pohl, disagreed with the decision and filed an appeal. In essence, Pohl argued the structure failed to meet the definition of a pier.

He filed his appeal on the grounds that TRPA failed to properly notice the 2018 meeting, which deprived him of the ability to mount an argument against the project.

Citing a misunderstanding between the legal committee and Marchetta, TRPA staff agreed that the meeting was not properly noticed and recommended the Governing Board grant Pohl the ability to appeal. The Poes also agreed with the determination by staff.

The board approved the right to appeal on Wednesday, setting the stage for the two sides to make their cases.

The case against

Speaking before the board, Pohl argued the pier was approved based on misleading information. And, if allowed to go through, the pier would obstruct the "natural beauty" for other residents while setting a dangerous precedent.

He echoed many of the arguments made in a letter he submitted in November following initial approval of the project.

Specifically, he said there was no evidence that the structure was built prior to 1972, which TRPA requires in order for it to be considered a "grandfathered" pier.

In his letter Pohl pointed to a past letter submitted by a previous property owner, Leslie McLaren, who was the granddaughter of baseball great Ty Cobb. In her letter, McLaren disputed the claim the "deck" was ever intended to be a pier.

Further, Pohl said the current iteration of the deck — TRPA staff noted the structure increased in size from 5 by 18 feet when it was first documented to 8 by 18 feet, despite the previous owners’ failure to obtain the necessary permit — was built with a composite material from a company, Trex, that was formed in the mid 1990s.

Pohl also argued the structure failed to extend beyond the high-water mark, as required under TRPA's definition of a pier.

He pointed to “photographic evidence” showing that even at full capacity, Tahoe's waters did not extend underneath the structure.

The case in favor

The Poes dispute Pohl's arguments.

Lew Feldman, a local attorney representing the Poes, explained to the board Wednesday that the application for the pier rebuild was based on prior recognition of the structure in documents approved by TRPA.

Specifically, Feldman pointed to site plans approved by TRPA in the early '90s that recognized the structure as legally existing coverage. Similar documents over the ensuing decades affirmed that point, meaning TRPA repeatedly recognized the structure as a legally existing one, Feldman said.

Further, TRPA in 2016 approved a deed restriction that said the property's shorezone development included one pier.

Topographical surveys that are part of the property's record show the structure stretches beyond the high-water mark.

Feldman acknowledged the matter was a "tough case" that came before TRPA while the agency was working to finalize its shoreline plan, which historically was a point of tremendous controversy. For that reason, he said it's understandable that TRPA staff might feel like they were "walking on eggshells" and would apply added scrutiny to the project.

Nonetheless, the fact is the Poes submitted their application based on documents previously approved by TRPA, and those documents support the existence of a legal pier, Feldman concluded.

What the hell is it?

Governing board members grappled with multiple different aspects of the issue.

Several sided with the argument made by the Poes that TRPA's approval of past documents, such as the 2016 deed restriction, acknowledged an existing pier.

There were plenty of government documents signed off on by TRPA, Shelly Aldean, Carson City's representative on the governing board, noted.

John Marshall, TRPA's general counsel, said he believed the matter was the product of insufficient communication by TRPA staff over the course of years — essentially the left hand didn't know what the right hand was doing.

"Fundamentally I think that's what was happening here," Marshall said.

He explained that while TRPA did sign off on documents like the deed restriction, TRPA staff also communicated to the Poes that they did not believe the structure was a pier.

Still, some board members expressed concern about whether a decision against the Poes would negatively devalue their property.

"Aren't we violating his rights of his own property?" Marsha Berkbigler, who represents Washoe County on the board, asked.

Others grappled with the fundamental question of whether the existing structure is a pier.

"I don't know what the hell the thing is," said Wes Rice, Douglas County's representative on the board.

"This is complicated to say the least," Brooke Laine, South Lake Tahoe's representative on the board, said before sharing her line of thinking.

The deck, which has grown in size over time without the proper permits, is not a legal structure, Laine concluded.

Ultimately, the vote was 7-5 against granting the permit to build the pier.

After the vote, Jay Poe told the Tribune he was disappointed.

"That's life," he said.