Submitted by Timothy Hay
Two nights before Christmas, a District Court judge issued a ruling that will affect how local officials approve development projects in the city –– a decision which could serve as a gift to special interests who are not concerned about the long-term impacts their projects have on Northern Nevada.
At its Jan. 26 meeting, the Reno City Council will have to decide whether it should appeal the judge’s decision in order to prevent a dangerous precedent that undermines the ability of local officials to defend the health, safety and welfare of its residents. The judge’s decision will hinder the ability for elected officials to reject proposals despite legitimate concerns about fire, flooding, drought, slope failure and other natural effects that we can expect to occur more regularly as a result of climate change.
The decision from Judge Kathleen Drakulich chills the ability for officials and citizens to raise meaningful public interest concerns on proposed real estate developments without having them overturned. The decision finds that the council members and planning commissioners were unreasonable for denying a proposed 955-acre development of nearly 700 homes by Lucas Property in Verdi. Council members’ cited concerns over heightened wildfire risk, public safety, emergency response time, infrastructure costs, traffic, and more as their basis for rejecting the proposal.
The Reno City Council and Planning Commission don’t have a reputation of thwarting development. It is notable when the planning commission unanimously denies a project, as was the case with the 955-acre Verdi development, and the city council overwhelmingly follows suit with a 6-1 vote.
The development pertaining to the district court, as originally detailed, planned for 676 homes to be added in the Verdi foothills. Residents submitted a deluge of concerns about the project from its inception. The opposition from the council and commission raised eyebrows – and ultimately led the developer to successfully petition for judicial review in district court (as is allowed under law).
Judge Drakulich’s decision inserts her opinion in place of one made by a bevy of elected and appointed officials in the community. This should only occur when an oversight agency or governing body abuses its discretion.
In the 26-page decision, the court concluded that the council members’ rejection of the Verdi proposal lacked substantial evidence. The threshold for “substantial evidence” is defined as that which “a reasonable mind could accept as supporting a conclusion.”
The City Council’s legal staff cited municipal codes in its legal argument that justified the decision making as it relates to impacts on wetlands, ridgelines, viewsheds, drainages and more. The court found this to be insufficient.
Underlining the court’s decision is the implied characterization that 13 out of the 14 local officials who voted on the proposal were unreasonable. That statistic begs the question in regards to who is or isn’t reasonable. If so many elected and appointed officials screwed up, that faulty reasoning should be assessed by another judge in order to ensure that it doesn’t happen again.
No one ever gets anything right all the time (me included) –– which is why it is important for the City Council to get a second opinion on a decision that will carry weight for generations.
The precedent here is that it will be impossible to challenge projects that don’t meet the standards elected officials are required to follow under the municipal code, which allows for discretion. If judges are the only ones who can wield any influence, the planning commission and the city council will become mere rubber stamps.
Our planet is changing – and Reno is not an exception to that. The developers’ proposed efforts to mitigate risks did not go far enough in the eyes of local officials who opposed the project. For example, does adding sprinklers to homes make up for the fact that already understaffed fire departments cannot get to the neighborhood within the required six minutes? Does a traffic study commissioned and submitted by a project proponent really mean 700 new homes in a small neighborhood like Verdi won’t pose new traffic problems?
We are living in an era where so-called mitigation techniques are not enough. The best mitigation technique is the one that doesn’t have to be deployed. And the Verdi proposal was full of end runs, compromises and sidesteps on the standards that we all deserve.
For the health, safety and wellness of our community, this proposal deserves another hard look. It is reasonable to request another review of this decision.
Timothy Hay has held a variety of legal and policy roles including as Nevada Budget Director and Director of Nevada Department of Administration; General Counsel to Governor Bryan; Legislative Counsel U.S. Senate; General Counsel and member of Nevada Public Utilities Commission; Chief Counsel to the Nevada Department of Taxation; Nevada Consumer Advocate and Nevada Deputy Attorney General. He currently serves as a legal consultant on couples and multi-district litigation.
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