Steve Kubby: ‘Protecting the Environment v. Defending The Constitution’

By Steve Kubby

Recently, I was sworn in as an official candidate for the South Lake Tahoe City Council, by City Clerk Susan Alessi. Take a look at what I have sworn to do:

“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.”

Taking such an oath is a serious matter to me and it has already changed how I view the world.

For example, I spoke to a couple last weekend at a campaign party I hosted, who were upset that they cannot add a garage or even a carport to their South Lake Tahoe home. In fact, I’ve spoken to a lot of homeowners and businessowners that are extremely frustrated and upset about the restrictions on what they can do with their own property.

One thing is clear, Lake Tahoe is the most regulated real estate in the USA. Homeowners typically must wait several years and spend thousands of dollars to do simple maintenance on their homes. Adding a garage or carport is usually forbidden. All because of a federal agency that has asserted its power to tax, fine and regulate virtually every activitiy and property in the Lake Tahoe Basin.

The Tahoe Regional Planning Agency (or TRPA) was formed in 1969 through a bi-state compact between California and Nevada which was ratified by the U.S. Congress. The agency is “mandated” to “protect” the environment of the Lake Tahoe Basin through land-use regulations and is one of only a few watershed-based regulatory agencies in the United States.

Despite the lofty promises, many local residents tell me that big developers with big bucks get the TRPA permits, while everyone else gets fines and moritoriaums.

Whenever someone questions why we must accept such intense regulation, down to what size and color is allowed for signs in the Tahoe Basin, we are told that Federal Law trumps State Law. However, that is simply not true. It is the Constitution that is the highest law of the land. Furthermore, only specific federal powers, as enumerated in the Constitution, are eligible for Supremacy Clause arguments. The 10th Amendment further secures State Sovereignty by transferring all non-enumerated powers to the States and People.

Now consider this: the Tahoe Regional Planning Agency’s Charter allows a city to pass and enforce their own rules and regulations, so long as they are “stricter” than the TRPA. An even stricter set of regulations would include two guidelines, not just one. The first guideline is to protect the environment. However, an equally important guideline has been ignored. The second guideline would be to, “support and defend the Constitution against all enemies foreign and domestic.”

This isn’t just prose, or libertarian rhetoric, it is part of the oath of office for all elected officials as well as our police and military. In fact, Article VI of the Constitution requires all elected officials to take an oath to support and defend the Constitution as the highest law of the land.

I believe the City of South Lake Tahoe can and should pass its own simple and easy to impliment regulations, that are based upon protecting the environment AND upholding our sworn duty to protect the Constitutional rights of the citizens of our city. Such rights would include the right of homeowners to add a garage or carport, to repair and maintain their property and to enjoy their property in peace, all without special fees and permits.

Rights delayed are rights denied. The TRPA has a lengthy history of delaying, sometimes for years, basic rights of homeowners. That puts members of the City Council in a position where their oath of office requires them to act and protect our homeowners.

The TRPA cannot invoke the Supremacy Clause, since there is nowhere in the Constitution where the word “environment” is mentioned. So there appears to be no enumerated power upon which to base a Supremacy Clause argument.

The City Council of South Lake Tahoe has the authority to pass its own regulations and a sworn duty to uphold the constitutional rights of our citizens. It is time for the City to replace the complicated, expensive and time-consuming regulations of the TRPA with its own, streamline and simplified land-use regulations. Any City land-use regulations that the TRPA doesn’t like, it can take to a federal court and challenge, but they will have to do so on Constitutional grounds and they will have to argue their case with the burden of proof on them, not our City Council. Meanwhile, the City Council must balance the environment with the Constituion to impliment regulations that protect homeowners and their families.

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By Steve Kubby, candidate for South Lake Tahoe City Council. Kubby was the 1998 Libertarian candidate for Governor of California, 2000 and 2008 runner up for the party’s Vice Presidential nomination, and sought its presidential nomination in 2008.