On Monday, March 13, conservation nonprofit Save Red Rock made the latest move in its intensifying dispute with Clark County over Gypsum Resources’ proposal to build a 5,000-unit housing development on Blue Diamond Hill at the edge of Red Rock Canyon National Conservation Area. The nonprofit countered the complaint that the county filed against it last December by filing a claim of its own and a request that the judge settle some key issues in the conflict: broadly, whether the Clark County Commission did the wrong thing last month when it determined that Gypsum’s 2011 plan was still valid, allowing the developer to withdraw its 2016 plan from consideration.
Among Save Red Rock’s assertions are that the county violated open-meeting laws by not deliberating and voting on the matter included in public notices (that is, the 2016 plan), and that it changed from 10 a.m. to 9:30 a.m. the time when the matter was to be heard, preventing opponents from entering the chambers and hearing full arguments.
"Commission Chambers was at capacity during much of the hearing," Clark County spokesman Dan Kulin says. "To accommodate the crowd, there were TV monitors in the hallway and the cafeteria showing the meeting. Also, additional people were allowed into chambers as other people came out. Everyone who wanted to speak during the hearing was able to speak."
In its counterclaim filed Monday, Save Red Rock also says that the county explicitly and repeatedly referred to the 2011 plan as “expired” in agenda items attached to public notices; that it failed to furnish proof of the 2011 plan’s validity when asked and, actually, provided evidence of its expiration; and that if the plan were still in effect, the developer would be violating it by using Highway 159, which winds through the national conservation area.
“Despite losing its rights-of-way and despite the express condition in the approval of Gypsum’s 2011 Concept Plan of ‘No access onto Highway 159,’” the counterclaim reads, “in or about 2014, Gypsum began reclamation work on the Gypsum Property. ... Gypsum’s reclamation work involves numerous large trucks accessing Highway 159 every day.”
The counterclaim also addresses the issue of the missing receipt that Clark County says helps to prove the 2011 concept plan’s good standing. At the February county commission meeting, county attorney Rob Warhola produced a receipt that opponents of the project had not seen before that moment, explaining that it had been lost but his staff had recently found it. According to the county, the receipt demonstrates that Gypsum did pay necessary fees to keep its 2011 plan alive.
Could this — and the county’s description of the 2011 plan as “expired” in public notices — simply be administrative mistakes, unfortunate but not unforgivable?
“If they made an error, they’re still bound by the statements they made publicly,” says Justin Jones, Save Red Rock’s attorney. “In the end, it’s up to a judge or jury to determine.”
If District Court Jerry Wiese accepts Save Red Rock’s counterclaim, then it will be set for a hearing on April 18. There are many possible outcomes since the nonprofit asks the judge to take several different actions and he may take none, some or all of them. A full win for Save Red Rock would overturn the county commission’s decision that the 2011 concept plan was valid, leaving Gypsum back at square one in the proposal process.
Meanwhile, last Friday, Nevada Assemblyman Steve Yeager (a Democrat from Clark County) introduced a bill in the legislature that would prohibit local governments from changing zoning to increase housing density within five miles of any national conservation area that isn’t a BLM disposal area. The law would apply to the development proposed by Gypsum, whose most recent plan includes an average density of 2.5 units per acre, five times greater than what is allowed under its current rural zoning.
A similar law passed in 2003; the developer’s lawsuit against the county and state over it went all the way to the Supreme Court, which decided that the landowner had been denied due process. But Jones, who was involved in crafting a 2013 bill, based on the 2003 law, that is similar to the current bill, believes it would pass judicial muster. Rather than singling out a specific owner’s piece of land to bar from development, it prohibits a certain type of development statewide.
“I think it makes sense,” he says. “Obviously, there will be some changes, but it makes sense for the state to get involved to make sure that not just Red Rock, but also Sloan Canyon and other public areas are protected so that you don’t have development abutting them.”
Editor’s note: The author, along with Justin Jones and Gypsum Resources representative Ron Krater, will discuss Save Red Rock’s Proposed Second Amended Counterclaim and Steve Yeager’s proposed bill on “KNPR’s State of Nevada,” Friday, March 17.