Judge: Petition can’t overturn Park deal
Nevada law does not allow a development agreement with Park Cattle Holdings to be overturned by a referendum, a judge ruled on Thursday.
“Based on the arguments, in Nevada approving a development is administrative,” Senior Judge Steven Kosach ruled in granting a writ of mandamus. “This is an administrative decision and is not referable.”
Petition organizer Jeanne Shizuru argued that California law allows referendums on development agreements, countering Douglas County Deputy District Attorney Doug Ritchie’s argument that unilaterally cancelling a legal contract is a violation of the Nevada and U.S. Constitutions.
The hearing took a detour through three of the major cases involving Western Nevada projects, including opposition to the conversion of Fuji Park to a private operator, the Sustainable Growth Initiative and the Reno Train Trench litigation.
Petitioners could appeal Kosach’s decision to the Nevada Supreme Court, but the court likely would not hear it in time to have repeal on the November ballot.
Shizuru sought an evidentiary hearing, saying that the Park 2500 petition wanted to depose some of the people involved in the approval.
The Park 2500 petition was already ruled insufficient after it failed a signature spotcheck required under state law.
Thursday’s hearing was to determine if petitioners could start over visiting residents whose signatures they’d already had.
Shizuru argued that the December approval of the development agreement fell in the category of new public policy and therefore should be subject to a referendum.
Attorney Mark Forsberg representing Park Holdings disagreed, as did Ritchie.
Forsberg argued that there was no need for an evidentiary hearing because the facts are clear on their face.
Shizuru said there is a huge gap in the case law between the SGI case and Forman v. Eagle Thrifty Drugs where the Nevada Supreme Court ruled that administrative acts are exempted from initiatives and referendums.
“If you summarily dismiss this as not referendable, it will be a historic day in Nevada law,” Shizuru argued.
Forsberg pointed out that there were four public meetings and that the petitioners could have instead challenged the agreement’s legality in court.
“Since this agreement was approved, Park has complied with virtually all of its obligations under the agreement,” Forsberg said.
He agreed that establishing an ordinance that establishes a permanent law for guidance of citizens is legislative, but an ordinance that follows previously declared policies is administrative.
“NRS authorizes the county to enter into development agreements that apply to uses of the land,” he said. “In (the lawsuit over SGI) the initiative was a statement of policy changing the law of Douglas County.”
Ritchie argued the committee could change county code, and may, since the recent election will likely result in two committee members joining the county commission.
Walt Nowosad will appear by himself on the November ballot while Mark Gardner has to defeat Libertarian Charles Holt to win the race.
Ritchie agreed that the committee could have challenged the development agreement in court, which residents of Orchard Road did in a lawsuit that was settled last week.
In December 2019, county commissioners approved a master plan amendment that moved 1,044 acres of receiving area from Topaz Ranch Estates to Carson Valley. Because receiving area allows up to 16 units per acre, the agreement placed a 2,500-unit cap and prohibited any big box stores on the property. Without the agreement, Park could have up to 16,000 units on the property.
Part of the justification for the master plan change was obtaining the right-of-way to the northern 3.39 miles of Muller Lane Parkway. Forsberg said the agreement also granted the county easements for culverts under Highway 88 that would pull 100 Minden homes and the East Fork Fire Protection District’s headquarters out of the flood zone. The Parks would dedicate a trail easement along Muller Lane and share in the cost of building detention ponds along the Muller Lane right-of-way that would remove parts of Minden and Gardnerville from the 100-year floodplain.
The agreement also settles the Park’s lawsuit over the denial of a project on the Klauber Ranch property south of Muller Lane.