Height limits are one of the most common features of zoning regulations, just as speed limits are one of the most common features of traffic regulations. We have a common expectation that such limits will be followed. They're laws after all. You wouldn't expect to be allowed to travel 165 mph in a 55 mph zone, no matter what the reason. And your property no doubt complies with its height limit.
So why is Max Baer being allowed to build his Beverly Hillbillies hotel to a height of 143 feet in a location where the Douglas County code sets a limit of 45 feet? Despite my 30-year career in county land use planning I can't give you the answer to that. Maybe the county commissioners who approved Baer's project (Baushke, Kite, McDermid) will write guest opinions of their own and explain their thinking.
In the meantime, let's take a closer look. How was this done? It was done by approving a variance from the height limit. There is a substantial body of law governing variances in this country. Variances arose when governments realized that zoning regulations combined with adverse physical features of property could preclude reasonable use of that property. This could result in a taking of property without the compensation required by the Fifth Amendment. So zoning laws evolved to allow exceptions to the rules to avoid that.
An example would be regulations that specify setbacks around the perimeter of a lot. If that lot has a physical feature that precludes building in the center of the lot, say a stream or fault trace or large rock outcropping, the combination of that feature in the center and the setbacks around the perimeter of the lot might make it impossible to use that lot for its intended purpose. So a variance can be granted to reduce the setbacks and allow reasonable use of the property, to get it back to parity with properties that lack the physical problems.
But the hardship created by this combination of rules and physical features must be genuine and the issuance of a variance must not in the end allow a project that goes beyond what is necessary to address the hardship. Otherwise, the variance can become an unlawful grant of special privilege, in violation of the equal protection provisions of the 14th Amendment, in which the government is using its authority to give someone a bonus not available to others. Also, the variance must not adversely affect other properties or persons.
Does the Baer project meet these tests? I think not. There is no physical feature there that would preclude following the height limit, as all the other uses nearby have done. And the Big George folks have made a persuasive case that this will hurt their project and those who will live there. So in the end I am forced to conclude that this variance was, in fact, a grant of special privilege to Mr. Baer. He's being allowed to exceed the height by a factor of three for no valid reason. Sort of like a sheriff telling his buddy he can go 150 mph while the rest of us are expected to obey the limit.
But what I find most troubling is that the County made no attempt to negotiate any sort of compromise here. Baer wanted 143 feet and got it. The community had set a standard of 45 feet that was simply ignored. Our officials seem incapable of demanding or negotiating much on our behalf during their review of projects like this. What might they have done instead?
Well, of course, they could have told Mr. Baer that he was welcome to build a casino but it would have to follow the rules. Or they might have asked him not to exceed some de facto standard, say the height of the capitol dome, about 112 feet. Or follow the example of their other recent major height variance, 80 feet for Starbuck's roasting plant. Or how about that old American standby of splitting the difference? Code says 45, you want 143, we'll approve 94 feet. Or better yet, they might have commissioned an independent visual analysis of the project and used that to guide their decision. Or they could have changed the rules for everyone in similar circumstances and made the limit at Topsy 150 feet. But they did none of that. They simply gave Max Baer what he wanted and left the community to fend for itself.
But, you might ask, so what? Baer's project carries the promise of riches for all, so who cares? Well, I think you should care. There are higher principles at stake here. What do the rules mean in a democracy? Are they administered in accordance with the law? Would you get the same treatment? Does money simply trump the rules? Does the effect of something like this on the community get any consideration at all? Does the development review process here mean anything or do we simply process the paperwork for whatever the next big shot wants? And how can "leaders" look you in the eye and keep a straight face about all this?
We have a beautiful Valley here, the envy of many. Now we will have our first "themed" casino here, right on our doorstep. The kind of thing that would fit well in the fantasy city of Las Vegas but I'm afraid will look like sort of a stale joke in comparison with our very "real" and beautiful surroundings. And we've decided to let it tower over everything in sight instead of looking for and negotiating a better way. And we may have given our integrity away in the process. Just when we were on the verge of healing the wounds of the growth fight. How sad.
So, commissioners Baushke, Kite and McDermid, what is the height limit in Douglas County anyway?
-- Terry Burnes is a Gardnerville resident.
