In a further effort to deny the Lemmon Valley homeowners damages for flooding caused by the city, the city will appeal the recent ruling in favor of the three residents that suffered the worst flood intrusion. Approval to move ahead with the appeal was 4-3.

City Attorney, Karl Hall, opened with the argument that the district court made several errors that he thinks should be settled at the Nevada Supreme Court. He thinks this issue applies to other cases currently pending. He thought the “class certification” was in error and that the liability was not clearly established. He also thinks the damages were determined in error.

Councilmember Brekhus pointed out that this is the second appeal to the Nevada Supreme Court on this case and asked if any of Hall’s arguments had already been considered by the court. Hall indicated that the Supreme Court had not yet ruled on this case.

Councilmember Duerr asked what were the possible outcomes that the city might expect if the appeal is approved. Hall said he hoped that the Supreme Court would order a new trial. He would like some guidance from the Supreme Court in any case. Hall asserted that the additional plaintiff’s attorney’s fees would be about $50,000 additional if they lost. He neglected the added interest the city would be liable for. Duerr has some concern for the public perception of the city spending more money on this case.

Councilmember Jardon expressed concern that the appeal will result in higher plaintiff’s attorney’s fees and would like some idea of what that amount might be if the city appeals and loses. Hall had a vague answer for the costs. He said the city could file an appeal March 10 and that the case would probably take 6 months.

Mayor Schieve asked Hall if the city needs to appeal this case in order to get “clarity” on the law regarding such suits. Hall replied that an appeal is the intended way to get such “clarity”.

Brekhus asked if the city could negotiate with the judge on the amount of the plaintiff’s attorneys’ costs and fees. Hall said yes. Brehus suggested that this would be a better use of the legal team’s time than moving forward with another appeal.

Councilmember Reese thinks there are enough legal errors in the recent ruling that warrant the appeal. “We have an obligation to follow the advice of our lawyer (Hall).” He trusts the judgement of the legal team.

Duerr reminded the council that the plaintiffs have waited over 4 years now. People are living in trailers and have their horses boarded somewhere else. She thinks the increase in the plaintiffs’ attorneys’ fees will be much higher than Hall suggested. Duerr “I think we should just put this to bed. I’m concerned that this drags on for the city and the plaintiffs as well.”

Jardon referred to the drawn out case of the city against Scenic Nevada was very instructive even though it lasted 15 years. It might be a benefit to pursue this appeal for what would be learned. She also thinks the $1.5M plaintiffs’ attorneys’ fees are unreasonable.

Brekhus didn’t think the Scenic Nevada case is applicable to this case. “Continuing to slog through this case will further alienate us from our constituency. I am very troubled by it. I just can’t go there. I don’t think another $50,000 is worth the roll of the dice.”

Schieve “There is a very large emotional toll that this has taken on those residents. I think we all ought to move forward. To me, this just doesn’t sit right. I won’t be supporting it (appeal).”

Reese claimed to take umbrage at the argument that he is callous toward the residents. He asserts that the city should defend itself against what he sees as “bad law”. The decision should not be made based on the emotional considerations: this is a case that will bear on future cases. The legal team is doing a “good job in defending the taxpayers and our general fund.”

Councilmember Weber “I just want to say that I do support our staff and our legal team moving forward to the Supreme Court. It’s just part of the process. This is the right thing to do.”

Schieve moved that the appeal not move forward. Duerr seconded. Brekhus voted “aye”. Reese, Delgado, Weber, and Reese voted “nay”. Then, Reese moved to approve the legal department’s proposal to appeal which carried 4-3.

The viewer is left with a few impressions. Reese takes umbrage easily. He wants to be seen as compassionate while arguing vociferously for fighting the homeowners. Weber made only a passing reference to the suffering endured by her constituents. Who does she represent? Delgado had nothing to say the entire meeting.

Meeting Video (topic starts at 30 minutes from the beginning)

Meeting Agenda

On Tuesday, 2/16/21 the Board of County Commissioners unanimously approved a proposal to create a “Commissioner Engagement Program”. It would be run within the county manager’s office under the communications director. It would include commissioner outreach and community advisory boards. The program would be effective in fiscal year 2022 and have a budget of $358,000. It would include two new staff members plus some technology costs. Some of it would come out of the existing county manager budget.

The first track would come out of the communications department with the following initiatives.

• Provide smart and targeted quality of life enhancements for each district.
• Make a new website or at least a separate web page.
• Develop a social media presence (Facebook, Instagram, and Twitter)
• Publish newsletters
• Host public “coffees” and “chats”

Like most dysfunctional organizations, the first effort is to address the negative perception rather than the underlying problems. It is “putting lipstick on the pig”. It looks like the goal is to increase “public trust in government” without addressing the pattern of malfeasance. The stated goal is to “increase citizen engagement”. This might take the form of a backlash.

A second part of the initiative is to have a greater development focus called “Neighborhood Level Development Input”. This is to “re-engage local developers to expand community outreach and public education”. They want the developers to run more and better meetings describing their new developments. Such meetings feature one-way communication. The developers rarely consider any objections raised by the residents. The program would encourage a “dialogue”, but this seems no different from the present practice if the developer will not compromise. The county wants a “data driven strategy” based on polling. They want better PR. They would improve their standing if they would uphold the existing zoning.

Commissioner Questions

• Commissioner Herman made the point that she wants to see the return of the earlier Citizen Advisory Boards (CAB’s). Will the new program have regular public meetings? The plan does not include restoring the earlier CAB structure. The meetings in the district would be up to the commissioner.
• Commissioner Hartung made the point that commissioners should not be appointing family members to local boards.
• Commissioner Hill thinks that more communication would be useful for her constituents in Incline Village.
• Commissioner Lucey claims that the original CAB structure was not effective. Every district is very different. The CAB’s should not be changed from the current roles. He is excited about this new program.
• Commissioner Jung likes a “toolbox” for commissioners to “personalize” their approach toward constituents.

Public Comment

• A member of the Sun Valley CAB described the utility of the earlier CAB structure and how it was able to serve the residents on a number of issues.
• The chair of the North Valley’s CAB says that they do not feel included in the whole process by the county commissioners. The CAB recommendations don’t get presented to the Board of County Commissioners (BCC). The CAB’s need to have some authority and there needs to be 2-way communication with the BCC.
• The chair of the Incline Village CAB reminded all that the CAB roles were limited by the BCC in 2014. Attendance in the Incline Village CAB meetings dropped dramatically after the CAB’s role was limited to development issues. Earlier meetings were attended by the Fire and Police representatives and informed the residents on many topics of local importance.
• A Warm Springs resident reinforced the point that the role of the CAB’s should be returned to the earlier scope.
• The chair of the Warm Springs CAB wants to have the CAB’s to have a greater role like they used to.

In meeting after meeting, year after year, the commissioners have listened to hours of residents’ testimony only to decide against them. They are getting plenty of “engagement”. They are simply not supporting the residents. The staff presentation even included a an eerie reference to the “silent majority”: a term coined by Richard Nixon. This brings to mind the slogan from 50 years ago “The majority isn’t silent. The government is deaf.”

The physical symbol of the problem the commissioners face with their constituents is the recent barrier built between the public and the dais. It’s a metaphor for the isolation that the commissioners seek from their constituents.

Staff presentation

Agenda (item 10)

Meeting Video (starts at 2:30)

The Nevada District Court handed a victory to three plaintiffs claiming damages from flooding caused by reckless development approved by Reno (2/11/21). The court ruled decisively that Reno was liable for more than $750,000 in flood damage plus interest. Judge Breslow granted summary judgment and awarded the plaintiffs the damages that they had requested, and struck numerous City witnesses for failure to properly disclose them. Furthermore, the court sanctioned the Reno attorneys $1,500 for failing to admit the truth of basic facts about the case, such as whether the Plaintiffs has water on their property at any time during 2017. This ruling will be brought before the Reno City Council to determine whether the City will appeal to the Nevada Supreme Court. If the City appeals and loses it will likely be liable for additional costs and attorney’s fees. Councilmember Brekhus has already expressed her opinion that the city should settle with the plaintiffs.

This ruling is only part of the story. There are still 27 plaintiffs remaining in Federal Court cases besides the three referred to above. The three state court plaintiffs were part of a class-action suit that had been “decertified” by the Nevada district court. Since the initial trial, the federal requirements had changed so that the remaining Swan-Lake flooding victims can now file their cases directly in Federal Court. The federal case is bolstered by Reno’s loss in state court.

REFERENCES

Trial Posts

ThisIsReno article

Ruling document

In a move addressing a quirk in the Nevada Revised Statutes (NRS), the developers (Newport Pacific Land Co. [NPLC] and Sunny Ranchos) of the Daybreak properties have appealed two Reno Planning Commission decisions that went in their favor. These two items were on the agenda for the Reno City Council; items I.1 and I.2. This seemingly-illogical tactic was taken so that the developers could petition for judicial review in case the City Council reversed the decision of the Planning Commission to approve. The NRS 278.3195.4 states that a plaintiff can only petition for judicial review if the plaintiff appeals both the Planning Commission decision and the City Council decision. There is no allowance for the case where the Planning Commission decision favors the plaintiff, but that favorable decision is then overturned by the City Council. This illogical construction in the NRS has been confirmed in a recent court decision (Prado Ranch North, 2019). The City Council can affirm, modify or reverse the decision of the Planning Commission to approve the development (see staff reports below). Presumably, the developers (appellants) would want the city to affirm the decision of the Planning Commission to approve.

The first appeal was from the Sunny Ranchos developer. Their tentative map approved by the Planning Commission was for building 124 homes on 47 acres. The Sunny Ranchos developer requested to withdraw their appeal.

The second appeal was from the Newport Pacific Land Co. regarding their tentative map for 205 homes on 97 acres. The NPLC representative requested to continue (postpone) consideration of their appeal until the City Council meeting on 2/24/21. The City Council approved the request to continue the consideration until the meeting on 2/24/21.

Wolgast and a neighbor contacted their representative, State Assemblywoman Lisa Krasner, in June 2020 to enlist her support to change the problematic NRS statute in June of 2020. This would be in the form of a Bill Draft Request (BDR) requesting a minimal change in the NRS wording. Initially receptive, representative Krasner then emphatically declined to promote the change. Wolgast went on to contact Assemblywoman Sarah Peters who said that she was giving pandemic-related issues priority and would not advance this BDR. So, if you want to have standing to petition for judicial review following an unreasonable decision by the City Council or the County Commission, you must appeal a decision by the Planning Commission even if it is in your favor.

REFERENCES:

NRS Fails Homeowners 2/21/19

Reno Staff Report LDC-21-00009

Reno Staff Report LDC-21-00010

The Reno City Council decided to postpone (continue) consideration of the Mortensen Ranch development until March 10, 2021. The Mortensen Ranch development had been denied by the Reno Planning Commission 12/18/19 and then the developer’s appeal was denied 1/22/20.

The developer requested a judicial review of the denial of their appeal (below). This was heard by Judge Kathleen Drakulich (the aunt of “JD” Drakulich, an area developer and a city council candidate). She ordered that the city reconsider the development based on the specific requirements of the Mortensen-Garson Overlay District (MGOD) that defines the zoning for this area. Her ruling indicates that more general concerns should not be considered in the city’s decision.

The developer marked-up their tentative map (below) to include the following changes.

• Reducing the total number of planned homes from 676 to 632 units.
• This included the removal of all 26 sites that were on the eastern ridgeline.
• Reconfiguration of the 23 lots on the southern ridgeline.
• The addition of an emergency access road to the northeast.

Not adequately addressed even with the changes are the following.

• The ridgelines are still not adequately protected as specified in the MGOD. This is especially true of the northern ridge.
• The required wildlife corridors have not been planned or reviewed by NDOW.
• The MGOD specifies where development can occur and which areas are required to be left as open space. The latest plan still has 200 homes planned in the area specified as open space.
• There is no plan to improve the traffic regarding freeway access which is already a problem.

The city clerk received 44 letters in opposition and 22 letters of concern. Voicemails were received in addition which were not described.

Councilmember Reese moved that consideration should be continued until the March 10 city council meeting. He is not comfortable considering this project when Councilmember Jardon is not present since it is in her ward. Councilmember Brekhus is opposed to the continuance since it will likely cause overly long agendas for later meetings. She is also sensitive to developer complaints that the city is not responsive and does not consider development applications in a timely manner. Mayor Schieve noted that Councilmember Jardon has not met with this developer and that this is an important step in considering the project. The vote to continue was unanimous except for Councilmember Brekhus. City Attorney, Karl Hall, indicated that there is no deadline imposed by the court for the city to reconsider the development. The e-mails and voice-mail messages received will be presented at the later meeting.

Reference