There was little relating to development on today’s agenda at the Reno City Council (July 24).  Most of the 27 speakers came to speak on item D-1 relating to enforcement actions against the homeless.  That item was pulled from the agenda at the last minute.

Councilwoman Brekhus had announced that there would be a moratorium motion discussed at this meeting, but it was not on the agenda.  She made this commitment following the joint Reno/Washoe County meeting on April 29 that covered flooding in Swan Lake.  Speakers from the North Valleys felt betrayed.

Speakers during general public comment made the following points.

• A moratorium is long overdue: there is no plan to address the flooding, and construction continues unabated.
• Reno does not appear to have done anything to address the flood risk since the April meeting with Washoe County.
• What is Reno doing to prepare for the coming rainy season now that the flood waters have receded?
• Do repairs to the Hesco barriers mean that these are seen as a permanent fixture around Swan Lake?
• Why do we need to keep building?  Is it really a benefit to the residents?
• The North Valley’s plan for development is insane.  The sewer plant is already non-compliant.
• Fire and police services are not keeping up with growth in the area.
• The city should be firing people responsible for the flooding and the recovery effort including the city manager (Sabra Newby) and public works director (John Flansberg).
• The city lost the class-action suit: the city knowingly flooded the Swan Lake neighbors.  How would the council redeem itself to regain the trust of all residents?

Mayor Schieve announced that there would be a special meeting dedicated to the topic of a moratorium on August 5 at 5:30PM in the city council chambers.

After the public comment, we saw the sparks fly on the dais.  Councilwoman Brekhus expressed her dismay that her moratorium motion was not on the agenda after she had specifically requested it to be.  She then requested that it be on the next meeting’s agenda for July 31.  She made the point that “moratoriums are of the essence.  They are a suspension of regulations and activity for a period of study and evaluation and planning.  Since May, there have been additional hookups (Lemmon Valley) and a lot of earth-moving.”  She is concerned that not only will it be detrimental to the community up there that is bearing the brunt of the un-managed growth and inadequate infrastructure, but that it will disrupt new business when the city runs out of capacity to support new additions up there.  She doesn’t want to wait till the August 5 meeting to “start to queue-up the process”.  She expects that implementing a moratorium will take multiple steps and that we need to start the process now.  Mayor Schieve responded sharply (presumably regarding putting items on the agenda).  You can see the exchange at the 1:59 time mark on the meeting video.

Note: there is now security screening with a metal detector to get into the city council chambers.  It is new today and caused a big delay for attendees to the city council meeting.

The following is a report from the recent Truckee Meadows Fire Protection District meeting by Tom Daly.  Fire news links

…

Highlights from the July 16th TMFPD meeting and other intel follows:

Wildfires and firearms – The discharge of firearms caused the recent ‘Jasper’ fire (west of Spanish Springs) burning two square miles and destroying two single-wide trailers and one out building. About 100 homes were threatened but the multi-agency response (TMFPD, BLM, RFD, SFD and USFS) saved most homes. Costs to battle the blaze at about $750K, with TMFPD to be reimbursed by BLM. Suspects arrested and charged. In public comment one citizen suggested keeping the County owned shooting range open daily for target shooting (the range is now closed on Tue, Wed and Thu) to preclude shooting in unmonitored areas.

Wildfire evacuations – Chairman Hartung requested a future agenda item to discuss the plans for wildfire evacuations.

Staff – BFC Alex Kukulus was promoted to Deputy Fire Chief (unclassified position ) with an employment agreement (2 years) and salary of $170K. The Fire Marshal position remains vacant but there are several well qualified applicants. Look for that position to be filled in November.

Labor issues – A potential new contract with the IAFF local was reviewed with potential pay increases over two years and other enhancements, including an educational allowance for those with an Associates or Bachelor’s degree. No action was taken, so look for this issue on the September agenda.

Fires – From July 3-5, TMFPD responded to 172 calls, 48 of which were fires occurring in 24 hours. Multiple agencies (RFD, SFD, CCFD, BLM & USFS) assisted given the volume of calls.

Plans – The TMFPD ‘Strategic’ plan and ‘Facilities Management’ plan, laying out a 5 year needs assessment for the District, will be presented for review and comment at the September TMFPD Board meeting on September 17th.

Ambulance – The Board approved on a 3-2 vote (Hartung and Jung dissenting) the purchase of a second ambulance to handle surge issues when REMSA is ‘out of ambulances’. This second unit will be located at TM#45 Sun Valley. The other ambulance is stationed at TM#30 West Washoe Valley.

Agenda Items 11 (Dashboard items review) and 12 (CAD/AVL Dispatch) were pulled due to time constraints and the self-serving and unrelated diatribes during public comment by Kathy Brandhorst and Sam Dehnay. These items will be on the September Board meeting agenda.

Next TMFPD Board meeting is Tuesday September 17th, time TBD (may be earlier than the normal 0900 starting time given the number of agenda items.)

The following is an open letter to Vaughan Hartung from Tom Daly regarding the locking of gates on fire-evacuation routes.

…

Vaughn:

Per our conversation today, to my memory the last multiple communities evacuation drill in the County was in 2008 and included the Mt. Rose corridor neighborhoods of Arrowcreek, Saddlehorn, the Estates at Mt. Rose, Callaghan Ranch, Timberline, Montreux, Galena Forest and St. James Village.

The drill was organized by the late SFPD Fire Chief Michael Greene.

While the conventional wisdom for such a drill would have been for a wildfire coming down the mountain, forcing those neighborhoods to flee east via Mt. Rose Hwy and Arrowcreek Parkway to the safety of the valley floor, Chief Greene instead posed a scenario of a chlorine tanker truck accident at the intersection of Fawn Lane and Mt. Rose Hwy., with the toxic plume spreading west forcing a west bound evacuation, save for the neighborhoods of Saddlehorn and Arrowcreek.

The drill was on a sunny Saturday morning with advanced notice to all communities. Locked gates from Callahan Road to Montreux and from there through additional locked gates to Galena Forest were unlocked in advance with temporary signs at each unfamiliar (to the evacuees) intersections directing fleeing residents (mostly from Callahan Ranch and the Estates at Mt. Rose, about 450 homes) to the safety of TM#39 Galena Forest, the designated ‘safe zone’. All went well and several dozen residents participated.

The County’s reverse 911 system was challenged as it was not able to contact many residents with cell phones to warn them.

Consider the same scenario today.

Assuming a more robust reverse 911 system, still few, if any, fleeing residents would know how to unlock those multiple gates. In my own neighborhood of the Estates at Mt. Rose, evacuation gates are controlled by the TMFPD, not by our HOA. Montreux and Galena Forest gates, some or all, are controlled and locked by their HOAs. Similar locked gates limit access from West Washoe Valley to St. James Village.

As we have learned from the multiple wildfires in CA in recent years, minutes not hours, are the time you have to make an evacuation decision. We cannot wait for the Sheriff, CERT teams or TMFPD units to arrive and unlock evacuation gates.

If residents are to have a chance to successfully evacuate, those gates need to be unlocked all of the time. They can be closed and latched to provide the normal limitations into those restricted communities, but need to be unlocked in the interest of public safety.

Only a county-wide ordinance requiring unlocked evacuation gates will ensure citizens’ ability to successfully evacuate.

Consider.

Thanks

Tom Daly

With no regular Reno City Council meetings scheduled for July, residents might think we would get a respite from the malfeasance … no such luck.  The Reno development train-wreck continues unabated with the following items.

Angela Fuss represented the monstrous Stonegate development before Reno’s North Valleys Neighborhood Advisory Board to request a change in the Stonegate plan on July 18.  The developer (Barnes) wants to remove the requirement for landscaping along the streets presumably to cut costs.  Ms Fuss is the public face of the project as a planning manager for Lumos (a development engineering firm).  She also advocated for the non-compliant Ascente development approved by Washoe County in 2016.  Her presentations have been shamelessly deceptive supporting the developers’ plans.  She has been hired by Reno as a planning manager.  Unbelievable!  This represents a total capitulation by Reno to the developers and special interests.  We do not know when she will first report to work at Reno.  This is akin to having a convicted car thief in charge of the parking garage.  Remember, the Stonegate developer suggested that traffic problems could be addressed if Reno would build a light-rail line to the development.  I hope the city council is working on building that train.  Ms Fuss could help.

Where is the agenda item for the moratorium on any new water or sewer hookups in the North Valleys? There is still no plan to address flooding in Swan Lake.  Council member Brekhus promised there would be an agenda item on this topic that would be debated in public.  She said it would be on the agenda at the next meeting.   The city council will meet on July 24, and there is no moratorium on the agenda.  What is behind this failure to deliver? The city has been convicted of causing the flooding in Swan Lake as seen in their loss to the neighbors in court.  They are apparently committed to making things even worse.  The “water year” starts October 1 which is the start of the rainy season.  It’s only 10 weeks away.

The agreement with the Paiute Tribe is that water from the Fish Springs well (Vidler pipeline) would not flow into the Truckee.  But, the Stead sewer plant is now sending some of its sewage to the TMWRF plant for treatment.  The TMWRF plant discharges treated effluent into the Truckee.  There is an additional concern that TMWRF is not meeting its discharge standards regarding “total dissolved solids”.  This is a problem for the threatened Cui-cui fish which are hatched in Pyramid Lake.  Maybe, the water quality monitor at the Pyramid hatchery will provide illuminating data.

This is a guest post by Mike Lawson.  He was interested in his replacement on the planning commission and had a meeting with her to understand her perspective and to share what he as learned from serving on the commission. 

As the outgoing planning commissioner for Washoe County district 2, I was more than a little interested in meeting my successor, especially considering that Commissioner Lucey’s decision not to recommend me for reappointment was politically motivated. I had made the wise but unforgivable choice to support his opponent (Steve Wolgast) in the recent election. Additionally, I voted in opposition to approval of development and zone changes which would benefit the special interests (many of whom contributed to Commissioner Lucey’s campaign), but don’t comply with the area plans. I was also concerned that Ms. Nelson’s appointment might have been influenced by the fact she is acting County manager Dave Solaro’s sister. So, it is not surprising that I was a little suspicious about my replacement and meeting with her would either corroborate or assuage my doubts about why she was selected to replace me.
I asked to meet with Ms. Nelson at her place of employment and she kindly obliged. I am pleased to report I found her to be a thoughtful and affable neighbor who shares the WRAP community concern about appropriate planning, or rather the lack thereof, demonstrated in recent years by Washoe County and the City of Reno. She was well informed about recent development along the Mt. Rose corridor and shared the citizens’ concerns about the safety and environmental issues, which have been exacerbated by poor land use development. She is informed and concerned about the flooding issues in the north valleys and the environmental concerns in Damonte ranch. She asked intelligent questions about my experience on the commission and was interested in my responses. I genuinely believe she is a well-intended citizen looking to preserve the character of the area plans while also ensuring technical reports supporting development are scrutinized to ensure the information is accurately represented, codes are complied with, and required findings can be met.
Nothing I have written is intended to suggest I speak for her. I am simply offering my impression based on a single conversation we had this week. However, I do believe she is both qualified to serve on the planning commission and has our existing communities and neighborhoods best interest at heart. I am also convinced her relationship to Dave Solaro had no influence on her appointment. WRAP and the citizens who read this blog and contribute to our cause are among the best citizens in our community. You have treated me fairly and with kindness and I thank you for that. I am asking you do the same for Kate Nelson unless or until she demonstrates she does not deserve it. We owe her that. Thank you.

Dear Reader,

WRAP involves only a few people to monitor what is going on in the Truckee Meadows.  Like you, we have our personal challenges, health considerations, and day-to-day chores and obligations.  At the same time, we are faced with many development and related issues in the region that are worth following.  We could really use some help, even a few hours a week.

Following Public Meetings

Nevada has comprehensive open meeting requirements so that deliberations and decisions are in public view.  Unfortunately, some meetings have no attendees representing the public or the media.  As a result, there is no coverage of the deliberations or the decisions that affect our neighborhoods and our quality of life.  These meetings might as well be held in a back room among old cronies.  They say “Sunlight is the best disinfectant for political decisions.”  This is true, but it requires someone to witness what is going on.

What’s Involved

By statute, all the governmental bodies have to publish an agenda at least three days in advance.  Items may be dropped from the agenda within the three days before the meeting, but items can’t be added.  These agendas are available online.  This is the practical approach.

1. Look at the calendar for the coming meeting for the specific government body and see when and where they will meet.  Regular monthly meetings are sometimes cancelled if there isn’t much to cover.
2. Look at the agenda for the coming meeting and see if there is a major issue being considered.  If the issues look routine or minor, skip the meeting.
3. Attend the meeting (or view on cable TV or online) and make notes about the major issue (or issues) being considered.
4. Compose a blog post describing the issue, the concerns that are raised about it, the deliberations, who made points to consider, and what the vote was.  I will happily edit your blog post for clarity and brevity.  Alternately, you can send me your notes, and I will compose the blog post.  I can credit you with the work, or I can post it under my name.

Coverage Needed

We need volunteers to take up a “beat” like a newspaper reporter.  For simplicity, and to avoid duplication, I look for volunteers to follow a specific governmental body.  We need volunteers to cover the following entities.

Reno City Council (They meet from 0 to 4 times a month.  Their meetings are broadcast on local cable channels and are available quickly online.  The online format allows the viewer to skip to a specific agenda item.)

Truckee Meadows Regional Planning Authority (TMRPA) They meet typically once a month during the day, but their meetings are not available remotely.  You need to drive to their office or to the county chambers or to another location to see their meetings.

Washoe County Board of Adjustment (Meets monthly in the evening on the first Thursday at the county commission chambers.  I don’t think their meetings are available remotely.)

Truckee Meadows Water Authority (Meets roughly once a month.  Their meetings are in Reno and Sparks.  Some are broadcast.)

Citizens’ Advisory Board, North Valleys (Meets monthly in the evening at the North Valleys Community Center.  Their meetings are not available remotely.)

Why bother?

We’re all busy.  Why add something to our responsibilities?

• We are all aware of the malfeasance and compromised ethics behind decisions that detract from our quality of life.  The first step to change this is to make these decisions public.
• You will quickly become a citizen-expert regarding the body you are following and about the issues impacting us all.
• Rather than feeling helpless about the bad decisions, you can make a difference and actively defend our neighborhoods and lifestyles.
• You can be part of the success pushing back against the decisions of the “good old boys” network.  Neighbors and activists are changing the way decisions are being made.

Closing pitch

Do not be intimidated.  We will help you with links to the meeting calendars and online agendas.  If you can’t attend or follow a specific meeting, let me know and I’ll seek a substitute.  This is not a lifetime commitment.  If you can only volunteer for a few months, it’s still a benefit to the readers.

Beyond monitoring the Washoe County and City of Reno bodies, we need to be looking ahead.  We need to be thinking about how we might influence the coming elections for the county commission and the city council.  We also need to be planning what changes we want to see in the state laws to reduce the blatant favoritism shown to developers in the code.

Tammy Holt-Still hosted a meeting with Paul McKenzie, George Still, and Steve Wolgast.  Paul McKenzie was the Reno City Councilman for the North Valleys.  This position is now held by Bonnie Weber.  McKenzie brought up a number of points that area residents may not know.

• The storm drain systems for Silver Lake and Swan Lake are connected.  There is a rise between the two lake basins, but if the water gets high enough, it can flow from one to the other.  It does not look like this happened in the past two years.
• Reno has a stop-loss liability policy which would apply to the class-action suit.  So, if the Swan Lake neighbors damages exceed limit (maybe $2M), the insurance company takes over the litigation and negotiation.
• The settlement of the suit could include requirements relating to a plan to address the flooding in general.  This would be negotiated as part of the settlement.
• Since the city was found guilty of “taking” (part of the “inverse condemnation” claim), there is no cap to the damages that could be awarded.
• While only retention ponds can meet the mitigation requirements of the Regional Drainage Manual for development in Lemmon Valley, Reno does not use these in part because the Reno Department of Health does not allow such water to stand indefinitely.  This sounds like a fundamental problem since the water captured by the retention ponds is likely to take some time to percolate and evaporate.
• Proposed Master Plan Amendments can not be summarily denied.  A Master Plan Amendment can only be denied by indicating that it does not meet the statutory “findings”.
• The Western Regional Water Commission (WRWC) has responsibilities under NRS for responsible water management, water sustainability, and storm water management.  Some of these responsibilities are beyond TMWA‘s charter.  WRWC should be fulfilling its duty to develop a comprehensive plan to manage water availability, storm water run off, sewage collection and treatment, and flood control.
• One promising plan to address flooding was to pump some of the RSWRF effluent  to Hungry Valley where the tribe would like the water for agriculture.  This plan broke down during negotiations with the tribe for unknown reasons.  TMWA appeared to be opposed to it.  TMWA sees effluent water as a valuable resource even as it causes flood damage.
• Reno now uses drinking water for the landscaping of new developments in the North Valleys since the Public Works Director does not want to commit to delivering more effluent water for irrigation.
• One concern with processing the RSWRF effluent through TMWRF is financial.  Reno and Sparks operate the TMWRF plant at a 66%/33% split (Reno/Sparks).  If TMWRF were to take RSWRF effluent, their percentage would increase so that the agreement would need to be re-negotiated.
• Water is being provided for new development through the Vidler Pipeline coming from Fish Springs in California.  California has plans to limit the depletion of aquifers in the state.  This could impact the new Lemmon Valley developments.
• Tentative map approvals expire unless they’re renewed.  Planned Unit Development (PUD) approvals do not expire.  The PUD specifies the number of dwellings to be built on a property, so once it is approved, the area is stuck with the size and density of development.
• The area with the Amazon warehouse and other warehouses was originally zoned residential.  It was re-zoned to industrial following the Great Recession and the collapse of the residential housing market.  This includes the area on North Virginia Street and the area at Lemmon Drive and Military Road.

Going forward …

• The City of Reno should be discouraged from moving forward with an appeal to the verdict in the Lemmon Valley class action suit.  Some progress may be possible in this regard through informal contacts.
• There should be a moratorium.  There is no plan to handle the excess run off and the increasing waste water volume.
• A strategy is needed to change the NRS in the coming session so that it grants more rights to homeowners.  As it is, it is blatantly biased in support of developers.  There are two parts to this effort.
  • Identify what changes need to be made to the statutes.
  • Identify a champion to promote these changes in the coming session.

This is a letter from Kim Rhodemyre to the mayor and Reno City Council regarding Mercury in an area proposed for development.  Kim is an authority on flooding and environmental issues in the area and leads the Upper Southeast Communities Coalition.

Dear Mayor Schieve and Reno City Council members,

On June 6th Randy Walter representing Bella Vista Ranch Phase II appeared before the Planning Commission to request on behalf of the applicant an amendment to the already approved Bella Vista Ranch Phase II. They wanted to add 20 more houses to their project. After reading through the handbook the Upper South East Communities Coalition has some significant concerns that we raised at this meeting but are now additionally concerned that the applicant is just going to start his project without the 20 additional homes because of the significant issues we raised at that meeting would cost them money.

This project was originally approved in 2013, but ALL of the significant and critical flood modeling was done way before that. On page 13, section 2, c.2 of the PUD, the modeling is so outdated that it might as well have been written on a stone tablet.

The Army Corps of Engineers approved the 404 permit in 2005. This was before the issue of Mercury became known. This project sits in the middle of a wetland that is flooded by Steamboat Creek on a regular basis and the applicant should be stopped from doing any grading or begin any movement of earth until a comprehensive grid test is done of the entire property. There has been NO testing for mercury in the project site. The safety of the surrounding residents and the future residents, depend on testing.

Additionally the Flood Control Master Plan and the flood storage plan are from 2006! The CLOMR is from 2007 and the LOMR from 2008. These are at least 10 years out of date! The entire area has changed and there is significantly more development and the Southeast Connector was not factored into the modeling. The flood storage basin in this project is so small it is a joke and is a danger to surrounding residents. We don’t have to tell you that flood modeling has significantly changed since 2006 and this project is a danger to not only the future residents but all the surrounding communities as well.

Recently the Daybreak Master Plan was denied by City Council for not being able to make a number of the findings. One item addressed at that time, and was significant, was that FEMA wants a remap of the entire east side of the valley and Jay Aldean, Executive Director of the Truckee River Flood Management Authority has already informed Council that all current flood elevation maps are at minimum 1 foot off- and that puts water in their project. He also stated that the remap will put a significant number of south Reno residents into the flood plain.

The Coalition is urging Council to get involved in this issue and require the applicant to update modeling and test for mercury before any permits are issued. The applicant went before Planning in June for 20 additional houses. They might just think that 20 houses are not worth going to City Council and will continue on as is with their approved PUD. Reports are that they are staging at the old gun club already.

We are asking you, for the safety of the entire area, to get involved and don’t let this project move forward without additional testing and modeling. If you allow this project to continue without these critical avenues followed and resolved, you could be criminally liable.

I would appreciate a response.

Thank you,

Kimberly Rhodemyre, Chair
Upper South East Communities Coalition

…..

Daybreak links

Reno denies Daybreak

Daybreak development continued

Daybreak Redux

The plaintiffs (neighbors) prevailed on their claims of “inverse condemnation” and “conversion”.  In some regards, the neighbors had won before the verdict was read.  A lot of information was presented at trial that confirmed the malfeasance of the city toward the Lemmon Valley residents.  The city council should feel chastened.

Here are some of the points made in the trial that I thought were significant.

• The Quad-Knopf study was completed in 2007 having been commissioned by the city.  The study concluded that suburban-density development should never be done in that closed basin.  If such development were done, it would require 100% mitigation.  The mitigation would be retention basins that could hold 100% of the runoff from the property due to the impervious surfaces.  The study considered all the solutions that are currently being considered, and found that none were promising.  Reno ignored the results and approved high density development with no mitigation or inadequate mitigation.
• The Ecologic study commissioned by the City of Reno in 2005 addressed the issue of waste water effluent contributing to flooding.  It indicated that increasing development supported by “imported” water (from outside the basin) would cause flooding if the effluent were discharged into Swan Lake.  It indicated that there was no easy or cost effective way to handle additional effluent generated in the basin.
• NRS states that “Approval of tentative map by the city does not constitute ‘substantial involvement’ with the development.”  This seems to indicate that the city is not responsible for anything that it explicitly approves.  The NRS should be changed.
• After the 1986 flooding, the Regional Water Commission was formed to consider flood characteristics of Lemmon Valley.  The RWC concluded that all developments should have 100% mitigation of their impervious runoff.  Reno did not want to be bound by their results.
• Reno paid HDR $325,000 for their engineers to testify for the defense against the scientific evidence supporting the plaintiffs.  Once their testimony was done, Reno granted HDR a new contract for $1,000,000 for a feasibility study about a new reservoir.  It sure looks like quid-pro-quo.
• Dave Solaro claimed that Washoe County didn’t evict residents from flooded properties, but the county put red and yellow tags on homes that said “Do not enter.” and “Uninhabitable”.
• While there were 57 plaintiffs in the suit, there were 160 homes with flooded septic systems.
• Mike DeMartini testified that a home on a 1-acre lot will have almost no impact on runoff compared to a 1-acre parcel in its natural state.  He remembered seeing almost no runoff from his 1/3 acre lot during a heavy storm.
• Most of the existing development is within the City of Reno.  The older neighborhoods in the county are on 1-acre lots with well and septic.  They produce little run off and no effluent.  The county’s role will change with the new Prado North and Lemmon Valley Heights developments both approved by the county commissioners.
• The RSWRF permit with the NDEP allows them to discharge effluent in Swan Lake up to the 100 year flood plain which would cause major flooding around the lake.
• The RSWRF measuring flume (gauge) was overflowing for almost 1,400 hours.  They really don’t know how much effluent and storm water they discharged to the lake.  The experts for Reno, used the recorded flow data which was clearly too low.
• When Silver Lake flooded, the Lear lift station pumped a lot of runoff along with sewage to RSWRF and this was discharged to Swan Lake after treatment.  This could have been avoided with better attention to the storm sewers in Silver Lake.
• Reno doubled the developed area around Swan Lake since 2005.  Their mitigation efforts had negligible effect.
• 2017 was a “ten-year” storm, not a “100-year” storm.  It had less precipitation than 1986, 1997, and 2005.
• The RSWRF plant has a bypass line that could have sent some of the RSWRF flow to TMWRF, but this bypass line failed during the storm.
• Undisturbed parcels will likely have 3-10% runoff from storms: roughly 90% will be absorbed.  Developed parcels will have 68-90% runoff: roughly 20% will be absorbed.

Charged moments:

• Roger asserted that Shipman lied (ok … “made a fallacious statement”) that the city had not hired a consultant to assess the damages that the plaintiffs had suffered.  Shipman didn’t dispute it.  It makes me wonder if Reno was thinking about a settlement before the verdict.
• Roger asked Reno’s hydrologist, Forest, “Did you select methods to support the answer that Reno wanted?”
• McMahon (hydrologist for Reno) repeatedly contradicted earlier testimony he’d given in a deposition.  Roger repeatedly asked “Do you remember answering this question in your deposition?”  followed by “Do you remember how you swore to tell the truth?”.  At one point, McMahon made a retort.  The judge came down on him hard.
•  John Flansberg, Reno Public Works, did not seem to know that the Reno design manual requires mitigation on all projects to reduce runoff.  The first time he asked anyone on his staff to look into mitigation was 2018.

Open issues:

• Will Reno ever go back and seal the drains in the retention basins that are not built to the city handbook?  These function as detention basins, which is not what is required.  Will they fine the builders or developers?  Most of the developments do not comply with the Reno ordinance for mitigation.

Reference:

Quad-Knopf study: 40 PLF 1812- 2338 North Valleys Flood Control, Vol I & II, Quad Knopf_ABBR    [Note that appendices and references have been removed to limit the file size.]

Ecologic study: 133 PLF 1630-1662 2005 NV Effluent Disposal Options

The bottom line is that the neighbors prevailed over Reno.  But, there’s more detail to consider now that the verdict is in.

The Verdict:

• The jury found for the plaintiffs on inverse condemnation (taking of real and personal property without paying just compensation in violation of the Nevada and US Constitutions).
• The jury also found for the plaintiffs on conversion (damaging or destroying personal property).
• The jury denied liability for the trespass (unlawful physical invasion of real property) and nuisance (the creation of a condition that interferes with the use and enjoyment of real property) claims.

Note: the jury verdict on one of the elements of inverse condemnation – “taking,” (whether there was a physical invasion of water that substantially interfered with the use and enjoyment of property) is an advisory verdict. That means the judge has the final say on liability for inverse condemnation.  If the verdict on inverse condemnation becomes final, the damages cap does not apply to that claim. Class members will be entitled to claim the full value of taken property (to the extent it was taken).

The defense and plaintiffs’ counsels have been ordered to meet to hammer out a “Findings of Fact and Conclusions of Law” document to define the outcome of the trial.  The plaintiffs will draw it up.  The defense may object.  The judge will review and enter what he sees fit.

The damages portion of the trial is expected in December.  The parties are ordered to have a settlement conference no later than November 7, 2019.

Verdict minute: johnson minute order

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