After confirming with the counsels for the defense and for the plaintiffs, the judge brought in the jury and gave them detailed instructions. There were 44 line items that the judge covered. Many of these were pretty self evident or seemed kind of technical. Here are a few of the principal points. See link to complete document below.
- The standard for judgement in a civil case is the “preponderance of the evidence” not “beyond a reasonable doubt”. If the plaintiffs’ case seems even a little bit more convincing than the defense’s case, you must find for the plaintiffs.
- Bring “every day” common sense to your judgement. Do not be swayed by sympathy. Do not guess.
- Consider only evidence that is presented by witnesses. The arguments presented by the counsels are not evidence.
- Deposition testimony should be given the same weight as testimony given during trial.
- Do not consider damages. These will be covered in a separate trial if needed.
- Mobile homes that are not recorded with the Assessor as fixed to the property are “personal property” rather than “real property”.
- The offenses alleged are “inverse condemnation”, “nuisance”, “trespass”, and “conversion” without compensation. In effect, Reno used the plaintiffs’ properties to store water (runoff and effluent) for the public good, without compensating the plaintiffs for the use of their property.
- Approving a tentative map for a development does not constitute “substantial involvement” by the city. I was stunned to hear this. Is this the pro-development bias that appears repeatedly in state law?
- The offense need not be intentional.
- “Reasonable” drainage is allowed where the benefit of draining onto a private property outweighs the harm to the property owner.
- The jury shall select a fore-person to represent the jury. Six of the eight jurors must agree to convict on each charge.
The alternate juror was thanked and excused. The judge thanked all the jurors for their service and acknowledged the disruption it meant to their lives.
Busby gave the plaintiffs’ summation. His purpose was to briefly “connect the dots” of the points made by the witnesses. His summation went like this.
- This is an important case involving a constitutional issue at both the national and the state levels.
- The city made this disaster. The development caused the runoff while the RSWRF expansion added effluent.
- Reno imposed the cost of the development on the plaintiffs. Reno saved the warehouses around Silver Lake and pumped water from Silver Lake to Swan Lake.
- He reviewed the hardship suffered by the Robinson, Johnson, and Walls families.
- He reviewed DeMartini’s point that the Cold Springs, Silver Lake, and Swan Lake basins all received similar precipitation, but that only Swan Lake had severe flooding due to development there and effluent contribution.
- Several of the large, new retention ponds had drains contrary to the Reno handbook. He didn’t ask why Reno did not inspect these large developments in the city.
- The city did not follow the recommendations in the Quad-Knopf study that they had commissioned. Since the report, impervious area in the Swan Lake basin has increased 100%.
- He cited Janelle Thomas saying that the city planned to convert the area from rural to suburban and that they had permission to pump water into Swan Lake up to the Base Flood Elevation that would have flooded many homes.
- The older county neighborhoods were there in 1986 when the rain was heavier but flooding didn’t occur.
- Reno owns all the sewer and storm water infrastructure, and they annexed 1800 acres around Swan Lake in 2016 for development.
- More rain fell during the water years of 1986, 1997, and 2005 than in 2016.
- Thompson estimated that the development and effluent had added 1.7′ to the level of Swan Lake even based on the under-reported RSWRF flow. Thompson said that Reno’s contributions will result in earlier, deeper, and longer flooding.
- This case is not about being pro development or anti development. Transporting, storing, and discharging water are public uses.
- “Intent” is not required for inverse condemnation.
- The definition of “Trespass” includes water.
- “Nuisance” is legally defined as something that interferes with your use and enjoyment of your propert.
- “Conversion” is to assert dominion over private property (not real property).
He closed with “Reno gambled by not following the advice of the studies that it had commissioned.”
Shipman made the closing argument for the defense. His argument was hard to follow. Here’s what I inferred.
- In the bigger picture, to protect property rights, we need the city to establish codes and zoning. Otherwise, development would be a free-for-all. The city needs to be a referee doing planning with foresight. The city can enforce its standards. [This all begs the question of why the city planned for development that would produce flooding. It does not address why the city did not enforce its own codes regarding retention ponds.]
- He tried to make the case that the city was not responsible for the retention ponds required for the developments. These were for private benefit. [This made no sense: the retention ponds were required by Reno codes to protect other properties.]
- He argued that “reasonable use” permitted uphill properties to flood downhill neighbors if it was done responsibly.
- He showed blurry exhibits of aerial photos of the basin from 1939 and 1945 talking about “baselines” that were used for comparison. His point wasn’t clear.
- He said the storm was a regional event with states of emergency declared by adjoining counties. He presented Governor Sandoval’s letter requesting emergency help from the President. Reno was impacted too: it was a victim.
- He fears that if the city gets sued for not following a study, that they will simply avoid doing studies in the future.
- When Reno works with a developer that doesn’t count as substantial involvement, even if Reno approves the tentative map for the development. [Unbelievable]
Roger gave a rebuttal of Shipman’s statement making the following points.
- All the plaintiffs’ experts agree on the factors, but had some difference on the quantities. They used accepted data sources and they visited the site personally.
- The defense’s experts made assumptions, and didn’t visit the site. They “cherry picked” the data to try to bolster the case of the defense. Their analyses used very specific time intervals to support their claims.
- Forest did not include the overflow of the RSWRF flume and assumed that developments had volume mitigation per the Reno handbook, when they did not have mitigation. Further, he used uncorroborated rain data and underestimated the impervious area of developments.
- Forest and McMahon were employees of HDR which was charging Reno $325,000 to support the defense. Furthermore, Reno granted HDR a new contract ($1,000,000) to do a feasibility study on a possible reservoir in the Silver Knolls area a few days after Forest provided favorable testimony in this trial.
- The “reasonable use” exception for flooding downhill properties requires proper planning.
The flooding of Swan Lake was not an emergency: Reno designed the sewer and storm water drains to make it happen. He went back to the opening theme of “Pavement and Pumping”.
The jury took about 4 hours to decide the case. They sided with the plaintiffs on the “inverse condemnation” and “conversion” charges, but not on the “trespass” and “nuisance” charges. There will be a new trial in December to determine damages due to the plaintiffs.
Complete jury instructions: Jury_Instructions-062619_01