Nevada Supreme Court strikes down Tahoe beach lawsuit (w/ updates) | SierraSun.com

Nevada Supreme Court strikes down Tahoe beach lawsuit (w/ updates)

A look at one of the Incline beach kiosks, which at one point were labeled with signs reading "private beach" prior to Steven Kroll's lawsuit being filed. The beaches since have been deemed "public with restrictions."

INCLINE VILLAGE, Nev. — Steven Kroll says he's reached the end of the line in his years-long legal challenge regarding access to Incline Village's restricted beaches.

"I have to say, we have to accept what we can't change, and this is the end of the road as far as those legal issues are concerned," the Crystal Bay resident said Tuesday after learning a day earlier the Nevada Supreme Court had struck down his lawsuit. "I accept the judgment of the court, but of course I'm disappointed, like any losing party.

"… I guess I have to accept my status as a second-class citizen … but I do not accept any obligation to pay as that second-class status, and I will always fight that."

Monday's ruling upholds a lower court order that only property owners living within Incline Village General Improvement District boundaries established in 1968 can access the community's beaches.

It seemingly marks the end to the latest round of legal challenges to beach access in Incline Village, with Kroll's original suit first being filed in spring 2008, around the same time fellow Crystal Bay resident Frank Wright filed similar litigation.

Wright's litigation went down in late 2011 after the 9th U.S. Circuit Court of Appeals deemed IVGID broke no federal laws; on Monday, Nevada justices delivered a similar message.

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"We conclude that Kroll fails to provide this court with sufficient authority supporting his arguments that IVGID Ordinance 7 … violates Nevada law," the justices wrote "… Kroll argues IVGID Ordinance 7 … exceeds IVGID's statutory authority because it excludes the general public from using the IVGID beaches. However, Kroll cites almost no legal authority supporting his argument."

The justices continued: "… Kroll's equal protection argument has already been disposed of by the federal district court in this case. Accordingly, because Kroll sets forth no applicable legal authority supporting his Nevada constitutional argument, we conclude his argument must fail."

Kroll sent an email titled "The End of the Road for Kroll vs IVGID" Monday evening to supporters, expressing his dismay over the ruling.

"… This is the end of the line as far as the legality of IVGID's definition of 'public recreation' and Crystal Bay's integration into full citizenship within IVGID is concerned, and that is a shame of gargantuan proportions," Kroll wrote. "The institutionalization of unneighborliness and publicly financed privilege is complete.

"Sorry everybody: I tried."

KROLL'S ARGUMENT

Over the past few years, attorney Stephen Balkenbush — who has represented the district and current and former trustees in the litigation — has declined comment on the case due to its ongoing nature by way of a high number of motions and counter-motions filed by both sides.

When reached Tuesday by phone, however, the Reno-based attorney applauded the high court for its decision.

"I just think the court did the right thing, and I think the (IVGID) board members did the right thing, all of them, throughout the whole history of this thing — they tried to do right by everybody," he said. "The Supreme Court carefully considered all the issues and found them to be of no merit whatsoever — that's really what they did if you read the order.

"Now, it's time to close this thing up for good."

Kroll's original complaint alleged both federal and state violations. He argued that the district's recreation policies defined under Ordinance 7 violated his First and 14th amendment rights, and further alleged the 1968 deed restriction included in IVGID's purchase of four beachfront properties — Incline, Ski, Burnt Cedar and Hermit beaches — violated his constitutional rights.

The crux of Kroll's argument is that since he is an IVGID resident (by way of the 1995 merger of the Crystal Bay General Improvement District with IVGID), he should not be excluded from the beaches.

This is based on the 1968 deed, which grants beach access to properties inside IVGID's boundaries at that time. Properties on IVGID land added beyond those boundaries (including in Crystal Bay and other areas) after 1968 do not.

On Feb. 10, 2010, the now-late U.S. District Court Judge Edward C. Reed ruled in favor of IVGID regarding the federal claims. On Sept. 6, 2012, Washoe County District Court Judge Steven Kosach ruled in IVGID's favor on the state claims.

Kosach referred to Reed's ruling, as well a December 2011 ruling from the 9th U.S. Circuit Court of Appeals that struck down Wright's lawsuit, to build his opinion.

Balkenbush defended the district against Wright's suit as well.

Kroll eventually appealed Kosach's ruling to the Supreme Court, leading to Monday's decision.

END OF THE LINE

According to a 2007 study, 427 IVGID properties are within its boundaries as defined after 1968; thus, those property owners pay a smaller recreation fee annually to IVGID to support its venues.

Of that number, 165 are in Crystal Bay, 132 reside in "Washoe County No. 1" (formerly the Crystal Bay GID) and 130 are sprinkled about Lakeshore Drive and its side streets.

Those numbers were highly sourced during the summer of 2007, when Kroll and Wright teamed with beach-access residents Chuck Otto and Andy Wolf to create a compromise that would have allowed sponsored access to everyone in the community, while not opening the beaches to the rest of Washoe County.

That compromise was voted down by the IVGID board, 3-2, in August 2007, which set the wheels in motion for Kroll's litigation.

On Tuesday, Kroll said since he first circulated a petition in 2006 challenging the district's boundaries, through the beach access committee process in 2007 and leading up to last week, he's spent thousands of hours of his time working on various legal maneuvers.

Further, he's spent thousands of his own money in terms of attorney fees to fight the case.

As for how much money IVGID spent to defend itself against the lawsuit, Balkenbush said he's unsure, although adding up all the years, "it's been expensive."

When asked if IVGID may consider seeking attorney fee reimbursements through Kroll, Balkenbush said he had yet to confer as of Tuesday with his clients, so he couldn't comment.

Timeline of events

August 2007: IVGID board votes down compromise, 3-2, that would have allowed non-beach access residents of IVGID access to Incline, Ski and Burnt Cedar beaches.

March 2008: Steven Kroll files initial lawsuit in Nevada District Court; Frank Wright files similar suit in federal court later in month.

May 2008: Kroll files against IVGID in federal court regarding Policy and Procedure No. 136, which opened areas of beach properties for First Amendment expression.

February 2010: U.S. District Court rules in favor of IVGID regarding Kroll’s federal case.

April 2010: U.S. District Court rules in favor of IVGID regarding Wright’s federal case; Wright appeals

December 2011: 9th U.S. Circuit Court of Appeals rules in favor of IVGID regarding Wright’s federal case.

September 2012: Washoe County District Court rules in favor of IVGID regarding Kroll’s state case; Kroll appeals to Nevada Supreme Court.

June 2013: IVGID board votes down offer, 5-0, from Kroll to settle before Supreme Court hears his state case.

Monday: Nevada Supreme Court unanimously strikes down Kroll’s state lawsuit.