Washoe County District Court Judge Barry Breslow last week sanctioned the City of Reno by fining city attorneys $1,500 for failing to admit to facts in the Swan Lake flood case filed by Lemmon Valley residents.
The sanction is on top of awarding more than $750,000 in damages to plaintiffs in the case. The award does not include attorney fees, which could double the amount owed to plaintiffs and attorneys. That’s on top of, likely, hundreds of thousands of dollars incurred by the city fighting the case.
A jury in 2019 found the city negligent and responsible for allowing development in a flood plain that ultimately damaged homes, rendering them unlivable, during the 2017 flooding of Swan Lake.
The flooding directly affected more than 150 Lemmon Valley residences, closed streets and caused hardship for Lemmon Valley residents whose road in and out of the valley was partially closed for extended periods after the flood. Only last summer was dewatering of the lake determined a success.
Local officials blamed the extreme, unlikely amount of water from winter storms for the flooding. But impervious surfaces such as roads and parking lots — surfaces that divert water rather than absorb it — made the flooding worse, the court determined.
First reported by This Is Reno, expert reports had warned for decades that increased development would create flood risks in Lemmon Valley. City officials refused to concede this point, despite their own studies showing increased flood risks.
Hydrologic analyses of Lemmon Valley, prepared in 1996 for the City of Reno, warned that, in regard to future development, “since Lemmon Valley is a closed basin with no outlet for flood runoff other than evaporation, increased impervious areas anywhere in the valley can cause the amount of water entering the playa, and thus the level of the playa to increase.”
A jury and Judge Breslow agreed.
“In this case, the City caused a physical invasion of flood waters on the [plaintiffs’] properties,” Breslow wrote.
The city, however, denied this occurred. City attorneys were asked to confirm the fact that “flood waters physically invaded upon [a Lemmon Valley property] between January 2017 and January 2018.”
A one word response — “deny”– from the city prompted Breslow to fine the city for refusal to recognize the facts of the case.
“The admitted evidence from the trial conclusively showed flood waters physically located upon the … property…” he wrote. “The City had no reasonable factual basis to deny the truth … and the City did not provide any.
“The Court finds that the City should be sanctioned… as the Plaintiffs met their burden to show the truth of the matters requested were of substantial importance but denied by the City, the City lack reasonable ground to believe that it might prevail on its denials of the matters requested; and there was no good reason for the failure to admit the truth of the matters requested,” Breslow added.
A class action suit
Breslow also chastised the city for what appears to be the city fighting plaintiffs on a number of issues even after a jury found in favor of the plaintiffs. These included making arguments with no legal basis or citations.
“The City raised legal and inconsequential factual challenges to [a plaintiff’s] claims, but it failed to support those challenges with evidence that could be presented to the Court in a form that would be admissible and it conceded during oral argument that it had no evidence to offer in dispute of any of the claimed amounts,” he wrote.
The city also argued that damages should only be awarded for the rental value of properties.
Breslow disagreed. The award amounts will be greater than those stated since Breslow ordered the city pay for damages of more than $750,000 plus interest back to February of 2017.
The case is not over. There is a separate federal case, and the city previously said it would be appealing the verdict by the jury.
Deputy City Attorney Jon Shipman, who defended the city in the lawsuit, did not respond to a request for comment by the time of publication. This story may be updated if a response is received.
Read the ruling below
Bob Conrad is publisher, editor and co-founder of This Is Reno. He has served in communications positions for various state agencies and earned a doctorate in educational leadership from the University of Nevada, Reno in 2011. He is also a part time instructor at UNR.