people who were not enforced in their environmental regulations they were not complying with their compact and gave specific examples to them where the problems of care to be present when  individuals to file suits to challenge regional planning agencies failure to comply with their contract or with their regulations in that suit to special jurisdictional like to know you know everybody have a right to be supplier in the state of nevada the other is the consider the number one lobbyist in the state of nevada another one at the time the suit was brought was a leading hotel manager owner and facility a commercial entertainment facility and we also were starting to think see things happen that we felt that they were proceeding to do to pursue their plans without going to in preparing the administrative record regarding the peer to not put in any of the documents in their possession related to the hamlet matters area that's the area where our clients have easement rights and property ri access was being blocked by these projects we were not able to get to your p a to put the documents that they had in their possession on the eve of the summary judgment the hearing just before that  it came out that t r p a staff that permitted what is called the king lear house which is a massive three story facility that's part of this entire process planned and they did it without any notice to us or any challenging the utilization of this commercial entertainment complex in a way that is contrary to t r p a rules t r p a in the opening brief speech twenty five acknowledges that the alleged interveners commercial entertainment project could never be approved by t r p a because it would violate numerous numerous ordinances saying this is a family compound make sure it's because it's being done in a different way and prohibit their use from being present in a commercial entertainment facility that's an line with the interveners we're out of line that there should have been an environmental impact study there should be no allowing of a commercial entertainment facility whether that's right the minutes use or some please the court counsel and the parties that are here i'm mark gunderson i represent the glenbrook homeowners association who has participated in this case as an interested party this case involves the community of glenbro nevada its development on the eastern shore of lake lying within the state of nevada of approximately seven hundred twenty one acres this property was developed over a number of years starting in  seven and was completed in one thousand nine hundred three this was a planned unit development of approximately three phases and there's no question in this particular case that this is a development that has a number of integrated portions to it including general forest lands easement areas recreational areas and the like approximately five hundred twenty five acres of the seven hundred somewhat acres was set aside for other residents within the community of lundgren this case involves the construction of a pier there defendant's wish to build a pier approximately forty feet from the existing community pier in which all the residents of the community of lumber every right to use for their own personal uses we believe that to be improper and we believe that there are three bases of on which the court had completed its plan of development as of one thousand nine hundred three at that time any further development of any of the properties within glenbrook it had subject control including the easement areas in front of the rufo parcels is prohibited designated in the plan of development was glenbrook company should more properly i think we just don't get confused on names glenbrook properties was the developer not any of the individual purchasers who bought property that developer concluded it subdivision concluded what it was going to do so all of its remaining parcels to various third parties and is no longer in the business of developing the plan of development is complete it's complete as stands today there's no more development to be done there rubio defendants don't stand in the shoes of the developer because they're not designated in the planet development as the developer if you look at to seventy eight you clearly states that the and they use the term landowner rather than developer but the developer is the one who has all of these properties that it intends to develop as a single row in single integrated unit of one or more parts to develop that property that's not who these people are they don't stand in those shoes because the logic of that conclusion is every homeowner who owns a lot then would have to some rights of development which is clearly an absurd result so these defendants don't stand in the shoes of the developer they don't have that right to continue to develop and this is not another community peer if they have the right to develop this peer under that guys they would have to do so for the use and the benefit of all the approval the peer approval is is no longer going forward because the t r p a stated in their conditions of approval that the revote defendants needed to community fear as was everybody in the entire community of glenbrook and there are a number of bases from which you can derive that right of use one to recreational easements if you look at the plan of development it clearly provides that all the people all the parties all the interests who purchased property from the owner blips the glenbrook company have the right to use all the recreational  in my view it went wrong in one aspect and it went right in the other aspects one it went wrong in determining that the plan of development allowed this defendant to do what it had plans to do that's where i believe the error occurred it was correct when the court concluded that these revote defendants have the right of use of the community here so we have agreed with the court on one hand and we have disagreed with the court regulations we've also asked for declaratory relief in this particular case and asked for injunctive relief to prevent this from going forward because it was in an amicable to an adverse with the terms of the plan of development the agency does not get into those land planning issues community peer those have two bases or you can find that right one in the recreational easements the grants reservations at the recreational easements as well as the particular deeds that are involved here well the question i guess is whether th burned by a recreational easement that's not quite a burden to buy recreational use from and yes but you're saying that how do you turn that burden and to our right to use the pier it's already there two issues arise when that issue comes up when we've briefed us and i don't want to burden the court with this argument is a great jury far but what happened is this this this was an issue that was really raised first time on appeal we don't believe that was a proper issue to raise and should have been raised and i don't believe ought to have been raised to we address that in any event and simply agree with the court when it concluded that the rule defendants had the right to recreate on all of their recreational property with that right never been disputed and if you actually take a look if we had developed this argument more before the just report we certainly could have done so you can take a look in the record and this is at page one thirty one there's we get again another deed in may have seventy eight that addresses the same issue the developer and the owner agreed that everybody who purchased property within glenbrook would have the right to use all the recreational program apply only t did well you've got a very interesting issue that comes up here and this wasn't fully developed before the lower court because it was an issue that was raised it was only raised on appeal we haven't had a chance to develop that record before the district court if you talk about the exhibit a properties exhibit b property in exhibit c probably by itself in a vacuum you can create all kinds of of macha nations but you've got to take a look at what happened in this planet development in much like in the hundred seventy eighty there's language in the the where the owner of the property grants to the developer of other properties which actually overlap with the a b and c properties in exhibit seventy seven in which the give you some time he responds the court has any questions thank  good morning r my name is john marshall and i represent the top regional planning agency i mean to respond to mr zone runs arguments regarding the environmental documentation compliance and mr read or respond to the state law issues regarding  conditions and i know that t r p a placed on the permit i think the place to start is what is the project that is before the court and it's a private pier a permit for a private p that serves then as an accessory structure to five residential parcels that is what she r p granted to the applicants in this case limited to residential it's also a single use design but for the addition of a second boat lift so it's designed the standards that they are the permit was issued for the pier is for a standard single use pier with an additional t r p then analyze the all the environmental impacts associated with granting of that permit under article seven of the t r p or the tar regional planning compa there is no evidence in the record of any and analyzed environmental impacts that t r p did not consider do european then place conditions on the permit that mitigated all the significant impacts that were found primarily these were fisheries and scenic impacts and then concluded that the issuance of the permit would not have a significant effect on the environment or made a s on this appeal the second point is going to look at the glenbrook preservation associations attack on that fonzie determination the century they make for coins the first one and the second one were raised below and that's the connected and cumulative impacts tests i think we clearly said on our briefs that the granting of the pier is not connected to any hypothetical upland development that the plaintiffs are afraid that might occur it doesn't automatically be triggered by that development it can proceed independent of the development and there's no justification independent justification for that that peer i e these people want to have access to the lake independent of any other assets that they might have and more importantly t r p conditioned the  that if they have access someplace else i e the community peer then they don't get the peer in other words the justification is if you have access you don't get the peer if you don't have access then there is  the next issue they attack is the cumulative impacts and i think just can be you raise a point of what they're requesting us to do is to speculate about a commercial development upland and somehow that we need to take into account that hypothetical commercial development there are multiple problems with argument the first one being as we have no idea exactly what they mean when they say commercial development secondly they have not alleged any impacts adverse environmental impacts associated with the commercial upland development and lastly when you aggregate impacts under a cumulative impacts test you need to aggregate the impacts of the peer some perhaps small impact that might aggregate with large impacts like you know the typical need for case that i think the ninth circuit deals with is like traffic or air quality or impacts that are small for this one particular project but when you aggregate them with past present and future projects they become significant the impacts associated with the pier fisheries scenic were the main issues that we dealt with there are no impacts that they have alleged to those resources from any upline development so there's nothing to aggregate regardless of how hypothetical this project is the next t talk about are controversy and whether the initial environmental checklist is consistent with article seven of the compact both those issues were not raised below and we feel that they are waived the controversy has to center on some thing that has to do with impacts not the use not controversy over the use does not controversy over whether or not there will be a commercial facility that these glenbrook residents may not want to be there but is there controversy over the environmental impacts associated with that and in this case there is no evidence in the record they submitted no evidence that there is controversy over t a r p his conclusion that there will be no significant of fact associated with the granting of the peer lastly regarding the consistency of the environmental checklist that t r p used in part to make its fonzie determination with article seven this environmental significant with significant environmental effects you shall do an environmental impact statement it's completely silent as to how you make that determination t r create adopted regulation court that we cite to in the briefs and the court just issued a published opinion on this issue and that can be found at three sixty five f stop second eleven forty six and the discussion is that eleven fifty seven where the court finds that for i think her not to denigrate their their interests too much but they're concerned about what's happening in the uplands rest assured that any development that occurs there is reviewed by p if it meets the minimum triggers and that any development will be analyzed for its environmental impacts that will occur there right now actually that it's there is plan an application in the record for relocation of development in the uplands and that was the only application that was before t a r p and i think that's it the excerpts of record volume five ten forty seven and what that the last issue i'd like to address very briefly is this issue of discovery and the dispositive nature that they raise and their reply raef of the protective order they argue that the magistrate could not have precluded discovery  administrative record case which is a common occurrence because it was dispositive of their claims this issue was not raised in the district court under seventy two way it was not briefed in their opening and in any event it's not accurate it was not dispositive their claims that just simply limited their claims to the administrative record and that we feel is perfectly justifiable so therefore we're just court to affirm the district court's ruling you good morning just to start off on can yes leaf read i represent the applicants for the pier called the interveners in the pleadings condition oh just so that's clear we're here because of condition and i think that the condition itself needs to be stated clearly it exists in the permit because of t r p a code section fifty four eight which prohibits new appears on parcels that and this is the important point it prohibits new peers on individual shoreline lots that are served by existing multiple use facilities the p r p a board's find say that the determination has to focus on parcels because that's what's required under the code this when it is stated by go and that the focus is on individual right whether mr fein has access to the parcel or mr rubio that isn't what's dictated under the code that isn't what the board's finding focuses on and that's  we believe that the court should defer to the manner in which t r p has interpreted that condition we're here to talk about access that's what condition i was about and i am at a loss to explain to you how the district court how or why the dish court did what it did on that issue and that's because there's no evidence that supports the district court's determination on access not and it stands out to me for that reason because the order  otherwise well reasoned thorough and correct but there is no way that the fine parcels were conveyed to glenbrook properties in one thousand nine hundred seven and they never benefited from that easement that's a question that just can be asked how does that burden become a benefit it can't i can explain to you why the first reason why and it's just not possible the first reason are the legal description of the property that was conveyed to glenbrook properties in one nine hundred seventy seven that's exhibit a property in the april one thousand seventy seven deed that legal description is identical to the legal description of the property that exactly and that's one page one sixty of our supplemental after page five seventy six of our supplemental accept those are the two legal descriptions there they are the thank you so it's just not  possible if the fine parcels were never an extent of the c c and r s they couldn't couldn't have been part of that nine hundred seventy seven transaction to glenbrook properties and another proof of that is that page three ninety four of our remained under the ownership of company for ten more years following april one thousand nine hundred seventy seven it was sold to mr fine in june it was sold to glenbrook properties in june of one nine hundred eighty seven and then sold to mr fein a few weeks after that miller those can be answers in the record they are page three ninety four of our supplemental excerpt and we made the court we made the court below aware of those two other things that i want to tell you just to  close the loop on on that exhibit a if you are to survey maps in the record that show that the fine parcels weren't part of that transaction the first you see in front of you that demonstrative exhibit comes from page two twenty one the fine parcels were burdened by the easement that's what you see the pink and yellow that's the area where the property is burned by the easement but obviously the fine parcels couldn't be two places at once and that is the last reason why the district court got the access issue wrong the merger doctrine the fine parcels couldn't have been both part of the property that was conveyed give an easement to each lot over the other lives and seems to me you can hear a lot that's both the subject of a conveyance and the subject of the merton i think that i agree with you that that is theoretically possible but that certainly does not it's not r s which are identical to the legal description of the property that was conveyed benefited with these men and the fact that those parcels were in for ten more years by glenn brook company they weren't conveyed declared properties for ten years on to clarify on the issue of whether this was raised or not i think that is important page three eighty one of the record here's what we said to the district court i'm quoting the fine parcels were not described in exhibit a to the one nine hundred seventy seventy eight and were not transferred to glenbrook properties at that time i think there's no reading of that language that that you could say that we didn't make the district court aware that if you and the simple fact is that both parties made the court aware that issue this map is in the record this map is in the record because go i submitted it in support of its assertion on summary judgment that the that map again shows the exhibit a property that was conveyed and it shows the fine parcels in separate and apart from that property that was conveyed it's just not possible that it was part of the seventy seven c yance that map is found at page two thirty nine of the record and the only difference you see in that map is that we have rotated ninety degrees so it's easier to read so the north south plains are the same  documents on the issue of who holds the rights we are the successors an interest to the party of the first part in the deed gundersen was talking about the development being complete that there can be no further development once it is declared complete that's an argument that has no basis in n r s two seventy a day or in the easement itself what has to be referred to and specifically we are bound by the covenants and that easement go is a successor to the second party of the second part in that deed we are bound to allow go home members access to our parcels for the uses that are set out in that deed also go whoa is bound by the covenants in that deed that allow development by the owners of the property not all types of development but only development of recreational language in the t r p as approval which which precludes any other development in the shores on it there's a deed restriction there and i think on the issue of an arrest to seventy a day all of the arguments you heard raised have already been raised to the nevada supreme court and addressed in its opinion issued in one thousand nine hundred five the the questions about density intensity of use were found at that time page nine zero one piece second it's page one thirty six of that opinion the district party the nevada supreme court said at that time that density and intensity those types of concerns weren't in forcible elements of the glenbrook plan under an artist to seventy eight and that's because they are not supported by covenant language in the documents the recorded documents that the mind parties i know i've gone over my time if i could ask just one more moment on on this issue of the main one nine hundred seventy eight deed that was raised at oral argument not addressed in our  that is i think very misleading as you look at that it relates to a completely separate conveyance of property and has nothing to do with this dispute at all thank you allow the right of use of these defendants to use the community peer support was correct thank you thank you i think any questions i think you have more than use what i want to bring to the court's attention to the fact that the fear that we're talking about now was proposed on december fifth and was approved on december nineteenth two thousand and one that's amazing amount of time and that's questions the environmental issues the impacts the environmental impacts are found on page seven of our second amended complaint paragraph eighteen they go in tremendous detail and they cover the points that have been made