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A hill to sue for

blog-blue_diamond.jpg

Stan Shebs/Wikipedia Commons

Blue Diamond Hill

As Desert Companion reported in October, a company linked to Jim Rhodes has rebooted its previously stalled effort to build a residential development on Blue Diamond Hill at the edge of the Red Rock Canyon National Conservation Area. The proposal reignited a decade-old dispute over property rights and natural conservation, with Clark County’s role as zoning authority at its core. In the last three months, the controversy has snowballed into a legal battle.

The area in question is a couple thousand acres on a hill across State Highway 159 from the small town of Blue Diamond, where a gypsum mine has operated on and off for 90 years. Rhodes has owned the mine and surrounding land since the early 2000s and wants to develop it. His first proposal, for between 9,900 and 19,800 units (or a density of four to eight dwellings per acre), inspired such bitter community opposition that it resulted in a state law against zoning changes — which, in turn, resulted in a lawsuit by Rhodes that went all the way to the state Supreme Court. The court found in favor of the developer, and in 2010 he and the county came to an agreement about what he could build on the land. However, during several subsequent years of trying unsuccessfully to work out a land-swap with the BLM that was needed to carry out the plan as envisioned (a time in which fallout from the economic recession stunted development), the project languished.

Support comes from

It came back into the public eye last June, when Gypsum Resources, the latest iteration of a Rhodes-associated Blue Diamond development company, submitted a concept plan to the county. The current plan resembles the earlier one while incorporating elements required by the 2010 agreement, including reducing housing density to 2.5 units per acre. Still, it met with the same fierce community resistance, most notably from a nonprofit, Save Red Rock, headed by Blue Diamond resident Heather Fisher and represented by attorney Justin Jones. The group circulated a petition that, it says, garnered nearly 29,000 signatures, and Jones appeared at Clark County Planning Commission meetings to make a case for recommending denial of the plan. And that’s exactly what the planning commission did in October — recommend that the board of county commissioners give Gypsum Resources’ concept plan the thumbs down.

 The Clark County Commission postponed its hearing on the matter, originally scheduled for November, to February 8, giving parties on all sides of the issue time to rally the troops. Save Red Rock continued gathering support through social media and a December confab in Blue Diamond. Fisher and Jones, as well as Gypsum Resources representative Ron Krater, aired their respective views in the media. And perhaps most remarkably, Clark County filed a lawsuit on December 9 naming both Save Red Rock and Gypsum Resources as defendants. Three weeks later, it asked the court for partial summary judgment in the case.

To a layperson, the county’s lawsuit is confusing. Rather than seeking some specific action by the defendants, it asks the court — specifically Judge Jerry Wiese — to grant it “declaratory relief”; that is, rule on some contentious matters before they come to a head, thus preventing the parties from suing one another. Put simply, the county is asking Wiese to determine whether…

  1. Gypsum Resources’ current concept plan is exempt from the usual approval process because it’s the same as the concept plan that was already approved in 2011, and that plan didn’t expire;
  2. Save Red Rock can be barred from voicing the same objections to the 2016 plan as it did to the 2011 plan because that argument has already been settled;
  3. The county is bound by good faith to extend the 2011 concept plan approval to the 2016 concept plan, according to the terms of its 2010 agreement with the developer;
  4. The concept plan conforms to the county’s planning codes (specifically one that Jones brought up about contiguous parcel requirements); and
  5. The planning commission was wrong in its denial of the plan because it misinterpreted relevant zoning law.

Save Red Rock seized on the second and fifth items, issuing a plea for donations to its legal fund with the statement: “Last week, Clark County shockingly sued Save Red Rock, seeking to bar consideration of anyone’s concerns about this concept plan and invalidate its own Planning Commission’s unanimous denial of it.”

The county refutes this interpretation. “This legal filing does not affect any individual’s right to express their opinion,” spokesman Dan Kulin says. “Anyone may speak on any issue during a public hearing — even issues that were discussed at length in 2011. However, this court filing seeks to clarify whether those old issues may be used again today as the basis for a different decision, or as the basis of a lawsuit.” (Given the case’s history, the lawsuit he refers to would presumably be filed by Gypsum Resources against the county, but Kulin declined to clarify this. Save Red Rock has also publicly stated that it would take legal action if it feels zoning laws have been violated.)

Not to be deterred, Save Red Rock responded with a motion to dismiss the county’s case based on Nevada’s anti-SLAPP statute. Jones explains the law banning strategic lawsuits against public participation (SLAPP) this way: “Anti-SLAPP laws aim to avoid attempts to silence good-faith communications in the public forum; for instance, when somebody speaks out on an issue and then gets sued for speaking out. … In this case, Save Red Rock spoke out on the issue of the development, and one claim that the county brought sought to bar Save Red Rock from participating in the public hearings.”

First amendment lawyer and anti-SLAPP specialist Marc Randazza, who’s not involved in the case, says he’s reviewed it and believes Jones is on solid ground. “When I see an instance like this,” Randazza says, “I slap my forehead and think, ‘What were they (the plaintiff) thinking?’” (He also points out that Jones helped craft a 2013 amendment to Nevada’s anti-SLAPP law while serving as a state senator.)

Randazza says he can’t recall seeing another case like this in any of his practices, from San Francisco to Philadelphia, and Hartford, Conn., to Miami. “If they thought this (complaint) was going to intimidate a bunch of activists, then they were sorely mistaken,” he says.

This hints at the bigger picture, as Jones sees it. He says the county could set a dangerous precedent by suing a conservation organization, particularly in its attempt to stop it from testifying.

“The real story here is that the county has taken the side of the developer in all of their legal positions,” he says. “They could have brought a declaratory relief action against Gypsum Resources, but they chose instead to side with Gypsum.”

Kulin, the county’s spokesman, stresses that a concept plan is just the first step in the lengthy rezoning process.

“Approval of a concept plan is not approval of higher-density development, and approval of a concept plan does not guarantee or imply approval of higher-density uses will occur,” he says. “Procedurally, a concept plan approval would be followed by a Public Facilities Needs Assessment, a Specific Plan, zoning designation changes for specific pieces of property, and a development agreement – all of which would be subject to multiple public hearings and a vote.”

In other words, this fight is far from over. Next up…

  • January 31: Hearing before Wiese on the county’s motion for summary judgment
  • February 8: Clark County Commission vote on the concept plan
  • February 9: Hearing before Wiese on Save Red Rock’s motion to dismiss

 

 

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