Lemmon Valley Heights Day in Court – Post By Steve Wolgast

The Lemmon Valley Heights development had a day in court Tuesday, 1/15/19.  Tammy Holt-Still, with the support of the Lemmon Valley/Swan Lake Recovery Committee, filed for “judicial review” after her appeal to the Board of County Commissioners (BCC) was dismissed for lack of standing in May.  The Planning Commission had approved the development with its questionable hydrology report.  The point of the judicial review is to determine whether the BCC’s decision on standing was “affected by other error of law.”  This is the only legal avenue available to most neighbors fighting the county on development decisions.  It’s “shooting the moon” given that Nevada law and (by reputation) Nevada judges favor development.  The best possible outcome is that the court will “remand” the decision back to the BCC to be revised.  Given our BCC, this is not an encouraging prospect.  The hurdles are high.  The cost is high.  The odds are very long.  But, there are several clear benefits.  The county is put on notice that the neighbors are committed to fighting the destructive decisions of the BCC.  The malfeasance of the county is again subject to public scrutiny.  The development work is likely delayed due to the uncertainty of the outcome.  Judicial review can be limited to a review of documents by a judge, or it can include oral arguments as in this case.

As if this weren’t discouraging enough, Tuesday’s hearing was only about whether Tammy had “standing” to file the appeal to the BCC in the first place.  Washoe County added an additional hurdle by filing a motion to dismiss claiming that Holt-Still had to name the developer as a party to the petition and since she hadn’t the court did not have jurisdiction to consider the merits of the case.

The “cast”:

Kerry Doyle (KD), attorney representing Tammy

Herb Kaplan (HK), attorney representing Washoe County

Egan Walker (EW), district judge for Nevada

 

Summary of arguments and positions:

On the issue of standing …

Kerry made the following points supporting Tammy’s standing.  One neighbor within 500 feet submitted an affidavit in support of the petition for judicial review.  Commissioner Lucey’s claim that Tammy was outside the 500 foot radius was prejudicial.  The BCC decided “standing” based on the 500 foot distance criterion.

Herb argued that the 500 foot distance criteria for “standing” is legitimate.  He went on to assert that the developer shouldn’t suffer the uncertainty caused by judicial review: it’s a burden on the property.  He repeated his concern for the developer’s plight.

The judge complimented Kerry on the “quality of her pleading”.  He said that Tammy can’t represent the Lemmon Valley Swan Lake Recovery Committee because of the way the appeal to the BCC was written.  She can only represent herself and her grievance.  He agrees that Lipparelli’s 500-foot distance criterion was arbitrary.  (Lipparelli is the district attorney who supports the BCC at their meetings.)   The Washoe County Code defines an “aggrieved person”, but Nevada Revised Statute (NRS) does not.

On the issue of jurisdiction …

Herb announced that the county had filed a motion the day before to dismiss the petition for a “lack of jurisdiction”.  This project was represented at the CAB, the Planning Commission and the BCC, so all parties must be named consistently from the beginning.  The developer is a party because he has a tentative map approved for the project.  He made the point repeatedly that Tammy was a proponent of a moratorium on new development in Lemmon Valley.  This appeared to be prejudicial.  [Herb is claiming that the developer is a party to the petition and the fact that he is not named in the petition is reason to dismiss it.]

The judge said that he will need to review the question of jurisdiction.  He asked “How is the developer a party to the case?  It is brought against the BCC. ”

Kerry made the point that this petition for judicial review is under NRS 278.3195 not NRS 233B.130 (the Administrative Procedure Act).  There are several arguments supporting the court’s jurisdiction.  Kerry also pointed out that the County wants it both ways, by arguing in another case that Tammy is not a party although she spoke at all the meetings and the developer is a party in this case when he only spoke in public comment at the hearing on the appeal.

What’s next …

Judge Walker instructed Kerry and Herb to file simultaneous briefing on the issue of the Court’s jurisdiction within 30 days addressing the following.

  1. Is the developer a necessary party to the petition per NRS 278?  Based on this, what is the jurisdiction?
  2. Should this case be combined with the petition for Prado North?

The judge indicated that if his court had jurisdiction, he would likely rule that Tammy did not have “standing” for the appeal.  We’ll have to wait and see.

Stay tuned.  The county is unashamed of their malfeasance and the incumbents have all been re-elected.  Neighbors may need to turn to the courts to limit the destruction.

 

 

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