Endangered Example

The Washoe County Commission has consistently overturned the decisions of the Washoe Planning Commission when the Planning Commission denies a developer’s project.  The commissioners routinely praise the developers and development as being a solution to problems caused by development.  The Lemmon Drive Estates (also known as “The Lakes at Lemmon Valley”) stands as the exception to this rule.  It was denied by the Washoe Planning Commission on May 1, 2018.  The developer appealed and their appeal was heard by the Board of County Commissioners on November 13, 2018.  The county commissioners sided with the Planning Commission unanimously, and the developer (applicant) sued the county in district court.  The court (Judge Barry Breslow) decided for the developer instructing the county to approve the tentative map for this project (July 19, 2019 ?, court record).  It appears that the judge did not grasp the safety issue that was central to the original denial.  Tuesday, the county commissioners decided to appeal the district court decision to the Nevada Supreme Court 3-1 (Herman, Lucey, Hartung for, Bergbigler against, and Jung absent). (Agenda) (Video)

Public Comment

  • Mess at Scott’s Ranch (Lemmon Valley) is not getting cleaned up by the county.  Disintegrated Hesco barrier is not cleaned up.
  • The county is “top heavy” with too few workers and too many managers.  The county doesn’t keep it’s commitments to do maintenance.

District Attorney, Nate Edwards

  • A typical time frame for a Supreme Court appeal would be 1 to 1-1/2 years.
  • The developer has filed a request with the court to recoup legal costs of $45,000.
  • There is a pending transaction (sale?) regarding this property depending on the outcome of the legal proceedings.
  • Does the County think it’s important enough to defend its jurisdiction to go forward with the appeal knowing that it would be liable for increasing legal expenses and also damage claims by the developer for delaying the project?

Developer’s Attorney, Stephen Mollath

  • The stewardship of the county should be to follow the zoning and the applicable laws.
  • There’s no zoning change or special use permit required.  It’s a simple tentative map.
  • The ingress and egress issues were wrongly decided by the Planning Commission and the Board of County Commissioners.
  • He recommends the developer seek damages for the delay that would be caused by the appeal.

Commissioner Discussion

Berkbigler “Why was right-in, right out the key point in the litigation?”  Edwards “This was the dominant issue in the Planning Commission’s decision.  This is likely to be the only issued emphasized in appeal.”  Berkbigler is concerned about the cost of possible damages if the county loses on appeal, but is also concerned about adding more housing with the flooding issues not fully addressed.  The county has approved “right-in, right-out” developments in other locations.

Public Comment

  • The developer’s attorney was disingenuous claiming that it was important to proceed with development while admitting that the plan was to sell the property.
  • This developer has not abided by regulations having gone into an area that was to be undisturbed in order to acquire rock for another development.
  • Right-in/right-out access will not be practical for fire engine access.
  • There were many issues to this case beyond ingress and egress that were not argued in the case.

Commissioner Discussion

Berkbigler shares the concern regarding fire engine access with the right-in/right-out configuration.  She asks if the additional conditions can be added to the approval of the development at this point.  Paul Lipparelli answered that the court ordered that the county approved the tentative map.  Additional conditions will be applied to complete the final map, but these are not discretionary.  The conditions you’re considering would normally go with a special use permit.

Lucey asserts that the original decisions denying the project were valid.  There were several reasons to deny this project, not just the ingress and egress issue.  The planning function belongs to the county with its open forum, not in a courtroom with only a judge deciding.

Hartung agreed with Lucey.  He is not comfortable with a judge overturning a planning decision.  He thinks the original decision was correct.  He knows there are a number of right-in/right-out developments and knows of many that have failed miserably and for that reason we have decided to move away from utilizing this scheme.  RTC was not willing to implement a better configuration.  The intersections are too close for each one to get a traffic signal.  There were more problems than just the traffic including the run-off handling and the incompatibility with adjacent properties.

Herman opposed the project since we did not have the sewer capacity to support this development and this is still not addressed.

Berkbigler agrees with the points made by the others, but thinks the fiscal risk of losing an expensive appeal is too great.

Public Comment

  • The appeal is the right move by the county.
  • Culverts in Lemmon Valley are full of weeds that are the county’s responsibility to maintain.  Mr. Solaro does not respond to requests to his office.

Perspective

This is a telling moment.  The only development project denied by the Board of County Commissioners (in the last two years) was overturned.  If the developers get their way in this case, it means that they get approved 100% of the time.  At the South Valleys CAB meeting on June 14, 2018, county planner Roger Pelham was challenged to name a single development project that the county had denied.  The only example he could think of was Lemmon Drive Estates.  The county must fight this vigorously, or they must admit they have no say in how development proceeds or in the consequences to the homeowners and the taxpayers.  Mr. Edwards’ tepid assertions don’t inspire confidence.

 

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