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134 A s the public evaluates the appropriateness of mandates and the efficacy of decisions, experiments in governance are bound to encounter opposition . Because trpa was restricting private use of valuable lands, personal involvement was unusually intense. Three main Tahoe property court challenges confronted trpa in the last part of the twentieth century: William Cody Kelly v. trpa, Suitum v. trpa, and Tahoe-Sierra Preservation Council v. trpa. Kelly’s case was ultimately decided in the Nevada Supreme Court; the others ended in US Supreme Court decisions. The William Cody Kelly v. trpa case was the first frontal attack on the science behind trpa regulations and land capability. The decision would be the culmination of a twenty-year battle over forty-five acres on a mountain above Glenbrook. Kelly owned the old Fleishman Estate, and he had subdivided it into thirty-nine lots. Kelly was a wealthy attorney who bought the property in 1966. In the early 1970s, he subdivided it to create “Uppaway Estates,” home sites for thirty-nine of the “finest and most exclusive” residences in the world. His project gained trpa approval through the dual-majority system. All five California board members had voted against it. The Nevadans split two to two, with the local Nevada county representatives voting yes and one member absent. Because the two states had not agreed to reject it, no action could be taken, and after sixty days it was deemed approved. Many of the lots were on extremely steep slopes rated Class I, or “high hazard.” The Kelly attorneys claimed that the development project would not cause any significant environmental damage, but that, “in fact, it would cure existing environmental problems of natural erosion.” Douglas County had already issued an administrative permit to allow land coverage in excess of that permitted by the regional agency when trpa filed suit to stop the project in federal court in 1975. Judge Bruce Thompson rejected the f o u r t e e n n litigating the issues l i t i g a t i n g t h e i s s u e s 135 trpa action, saying in a memorandum and order that agency policy had been followed, and, in filing the suit, the agency was attempting to act arbitrarily.1 Changes to the trpa Compact in the 1980s resulted in the subdivision’s notyet -developed Phase III, or Hilltop Lots, being adjudged “in need of further consideration.” The agency’s building moratoriums during that same period prevented consideration of approval of the Hilltop Lots. Once a road was built, and with trpa’s 1987 plan implementing ipes, or Individual Parcel Evaluation System, the agency immediately found one of the six Hilltop Lots eligible to receive a building permit. On July 24, 1987, while appealing the remaining scores, Kelly filed suit, asking for monetary relief and punitive damages. Prior to the commencement of the trial, his appeal resulted in another lot being rated buildable. That left four lots that were not immediately eligible. The defendants, trpa and the two states, made motions for summary judgment , and the district court granted in part and denied in part. In February 1990, Kelly proceeded to trial on the two remaining issues: temporary taking of lots without compensation and deprivation of economic use of property without due process. In presenting the case, Kelly argued that the science on which trpa’s regulations were founded was flawed. Robert Twiss testified as one of the expert witnesses regarding the scientific foundation of trpa regulations. In his tenure of more than forty years dealing with Tahoe issues, Twiss had served the California attorneys general in trials in three ways. Because he was a consultant who could defend the science of trpa’s regional plan or because he was ctrpa chairman, he was at times a percipient witness—that is, a party to issues on trial. He also served as a consultant , sitting in on depositions to advise the state attorney on lines of questions that might be pursued. At still other times, he served as an expert witness on environmental land use. It was in this last role that he served in the William Cody Kelly suit. The trial was held before District Judge Charles McGee in Gardnerville, a small town outside the basin, in Douglas County. Much of Judge McGee’s experience had been in family law; this would be an entirely different kind of case. The jurist proved to be a quick study. Twiss and...

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