Jim Porter: Incline Village beaches open to the public?
Special to the Sun
TRUCKEE, Calif. and#8212; Itand#8217;s not too often that we have a local case decided by the courts and published in the law books. Several beautiful Incline Village beaches just made it into the federal published Opinions.
Everyone knows what IVGID is, the Incline Village General Improvement District, in Incline Village, Nevada. IVGID is the closest thing to local government at the north end of the lake and#8212; Nevada side.
In June 1968, IVGID acquired property including Burnt Cedar Beach, Incline Beach, Ski Beach and Hermit Beach. The beach purchase was funded by the sale of public bonds paid by property owners within IVGIDand#8217;s boundaries as of that date.
No Beach Access
The IVGID beach properties are bound by a recorded restrictive covenant, which limits the property to recreational use by property owners and their guests within IVGID boundaries as of June 1968.
IVGIDand#8217;s ordinances also restrict use of the District beaches as per the deed restriction, so properties annexed into the District after May 30, 1968, are not eligible for beach access and use.
Parking Lots Open
However, IVGID policies allow members of the public to use certain areas of the beach property as and#8220;designated public forum areas for the exercise of expression, speech and assembly.and#8221; Those areas are the and#8220;parking lots, the walkways within and adjacent to the parking lots, and the sidewalks adjacent to the public entrance to any building open to the public … and#8221; The beaches are designated and#8220;a non-public forum.and#8221; I.e., no general public access.
In short, if you want to assemble or exercise your rights of free speech on the IVGID beaches, you are essentially limited to the parking lots, a much less favorable place to speak your peace and make your opinions known.
Beach Policy Challenged
Frank Wright lives in nearby Crystal Bay, Nevada and#8212; where I used to live. Our family had a cabin on Gonowabie Road at the hairpin turn. We had the best summers of our lives in 1966, and#8216;67 and and#8216;68 and#8212; waterskiing and sailing every day.
Mr. Wrightand#8217;s property is in IVGIDand#8217;s current boundaries, but not within the 1968 boundaries. The District refuses him access to the beaches.
Wright sued, challenging the District Ordinances and Policies as a violation of the First and Fourteenth Amendments and#8212; Freedom of Speech and Assembly. He also argued that IVGID violated the Equal Protection Clause as he is not treated equally solely because he is outside the 1968 District boundaries.
Beaches A Public Forum?
While the legal arguments in this case are a bit dicey for a writer who can barely spell C-o-n-s-t-i-t-u-t-i-o-n, the Federal District Court Judge and Court of Appeals analyzed whether IVGIDand#8217;s beaches are a traditional public forum, a place where the public has always gathered and#8212; an area historically associated with the free exercise of expressive activities.
The Court of Appeals concluded that while public parks are generally deemed traditional public forums, a beach is different, especially as the IVGID beaches have historically only been used by 1968 property owners for recreational beach-type activities.
The Court found the deed restriction limiting use of the property controlling.
If IVGID could not exclude people from its beaches as required by the restrictive covenant, and#8220;we would be removing one of the essential sticks in the bundle of property rights belonging to the prior owner of the 1968 property; namely the right to exclude others.and#8221;
The Court found that just because IVGID allowed the public on the beaches to view fireworks and allows its employees to access the beaches, does not make them a public forum area available to the public.
In California, Wright would probably have asserted some sort of public easement right of access to Lake Tahoe, at least between high and low water marks, but such a potential claim is unavailable in Nevada.
If Frank Wright wants to be a and#8220;haveand#8221; versus a and#8220;have not,and#8221; heand#8217;ll have to buy property within the 1968 IVGID boundaries.
Jim Porter is an attorney with Porter Simon, with offices in Truckee and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at firstname.lastname@example.org or at the firmand#8217;s website http://www.portersimon.com.