Letter from Washoe County attorney Michael C. Chapman to Sen. Mark Amodei, R-Carson City

April 11, 2005

Mark E. Amodei
Chairman, Senate Judiciary Committee
Nevada Legislature
Carson City, NV

Re: SB 326

Dear Chairman Amodei:

   I represent Washoe County in three pending lawsuits regarding various issues bearing on the public’s acquisition, by eminent domain, of the Ballardini Ranch. The County opposes section 1 of SB 326. This letter summarizes my comments before the Judiciary Committee of last week, and responds to your question about the effect SB 326 might have on the pending lawsuits if the bill were made retroactive. Three lawsuits currently exist.

   1. Case No. CV04-02092: The County’s August, 2004, eminent domain suit seeks to condemn the entire 1019 acre Ballardini Ranch for public open space, and asks the court to determine just compensation. Evans Creek, LLC paid $8.5 million for the property in 1998. The County’s offer of $18.6 million was rejected by Evans Creek. Both sides are reappraising the property as of August, 2004, the statutory valuation date. Evans Creek principal Tim Nelson believes the value of the property is not less than $100 million. Trial is set for 4 weeks in May, 2006. Settlement conference is set for November, 2005 before Judge Adams. Evans Creek previously removed the case to federal court, but Judge McKibben remanded it, finding the issue of eminent domain is not a federal matter.

   2. Case No. CV-–04-0433: Evans Creek, LLC’s August, 2004 federal civil rights case against the County. The purpose of the case was to stop the County’s state condemnation case and secure money damages. Evans Creek alleges various facts, which were also stated by Evans Creek in its presentation to the Senate Judiciary Committee, and seeks more than $50 million, above and beyond the fair market value of the property. The County filed a motion to dismiss the case, which is now under submission to Judge McKibben.

   3. Case No. CV03-01746: This is a case for declaratory relief filed by Evans Creek, LLC against the County. Washoe County declared, in April, 1999, the existence of certain historical roads, as authorized by state statute. (NRS 405.191, and NRS 405.195). One of these roads crosses the Ballardini Ranch. Evans Creek contends the Ranch has never been subject to public travel, and asks the court to void the County’s designation. This case is now consolidated for trial with the County’s eminent domain suit in the Second Judicial District Court, Department 3, (Judge Polaha), with trial set for 4 weeks beginning May 1, 2006.

        A. The County opposes SB 326, as an unwarranted change in existing law, even if it is not amended to make it retroactive.

SB 326 seeks to outlaw the use of eminent domain for acquisition of open space. This changes existing law.

NRS 37.010 identifies public purposes for which eminent domain may be exercised. In section 3, it states in pertinent part:
County...activities... [A]nd all other public purposes for the benefit of any county...or the inhabitants thereof.

Open space is a public purpose. The legislature declared in NRS 361A.090: The legislature hereby declares that it is the best interest of the state to maintain, preserve, conserve and otherwise continue in existence adequate agricultural and open-space lands and the vegetation thereon to assure continued public health and the use and enjoyment of natural resources and scenic beauty for the economic and social well-being of the state and its citizens.

The legislature further adopted NRS Chapter 376A, amplifying the legislative conclusion that open-space is a public purpose, and providing for its acquisition and maintenance. Chapter 376A states in relevant part:

        376A.010 Definitions:


        1. "Open-space land" means land that is undeveloped natural landscape, including, but not limited to, ridges, stream corridors, natural shoreline, scenic areas, view sheds, agricultural or other land devoted exclusively to open-space use and easements devoted to open-space use that are owned, controlled or leased by public or nonprofit agencies.


        3. "Open-space use" includes:

     (a) The preservation of land to conserve and enhance natural or scenic resources;
     (b) The protection of streams and stream environment zones, watersheds, view sheds, natural vegetation and wildlife habitat areas;
     (c) The maintenance of natural and man-made features that control floods, other than dams;
     (d) The preservation of natural resources and sites that are designated as historic by the office of historic preservation of the department of cultural affairs, and;
     (e) The development of recreational sites.

NRS 376A.030 (1) states: If an open-space plan is adopted pursuant to NRS 376A.020, the board of county commissioners may:

                (b) Acquire by purchase...or by any other manner, parcels of land...for open-space in                  accordance with the open-space plan.(Emphasis Added).

The County adopted its open space plan in 1994. The Implementation section of the plan lists condemnation as one of the methods by which land can be acquired. In 2000, the voters of Washoe County approved Washoe County Question No. 1, which approved the issuance of up to $38,300,000.00 in bonds for Park, Open Space, and Libraries. $4,000,000.00 of this money is earmarked to go toward the purchase of the Ballardini Ranch, the total value of which exceeds this amount. In 2001, the Washoe County Board of Commissioners passed a resolution specifying the importance of acquiring the Ballardini Ranch for open space, directing staff to pursue funding in cooperation with other entities.

The State of Nevada is not the only state which protects open space as a public use and policy. "It is a generally accepted concept that the preservation of open space for the various reasons discussed above is a public purpose to justify the use of the power of eminent domain". 14D Nichols on Eminent Domain, Section 02.5. Other states which have enacted protective legislation include California, Florida, Georgia, Illinois, New Jersey, New York, Connecticut, and Massachusetts.

The U. S. Supreme Court, in deciding the case of City of Monterey v. Del Monte Dunes at Monterey, et al., 526 U.S. 687, at 700, cited with approval a jury instruction which stated:

Public bodies...have the authority to take actions which substantially advance legitimate public interest[s] and legitimate public interest[s] include protecting the environment, preserving open space agriculture, protecting the health and safety of its citizens, and regulating the quality of the community by looking at development."

The Nevada Supreme Court in Bushard v. Washoe County, 68 Nev. 217, 236 P. 2d 793 (1951) dealt with similar facts. Washoe County condemned 138 acres on Slide Mountain for public park, picnic ground, and recreational area. The District Court by its judgment found the taking to be for public park and recreation area. This is consistent with the uses of open space (which statute did not exist in 1951 when Bushard was decided) because the open space will be used for recreation as well as the other purposes set forth in NRS 376A and quoted above.

In conclusion, use of eminent domain to acquire the Ballardini Ranch for open space is authorized by current Nevada statutes, case law, and the law of eminent domain generally in federal and state jurisdictions in the United States. This is the current state of the law.

        B. SB 326 will change existing law.

The effect of SB 326 as currently drafted (prospective effect only) will be to change the law by disallowing the use of eminent domain for the acquisition of open space. The County opposes the bill because it will prevent the acquisition of open space from persons who either do not want to sell at any price for any reason, or who will sell, but only at a price far above market value. Eminent domain allows the County to compel the sale, and guarantees the owner fair market value as determined by a court. This process allows the County, on behalf of the taxpayers, to present evidence of the property’s fair market value to counter an exorbitant demand. By removing eminent domain as a tool of local government, the legislature places the local government in the position where it may have to pay above market value because it loses the ability to have a court determine that value, or, to forgo the purchase of the property entirely. This is contrary to the public interest. Because of the scope of uses defined as open space under NRS 376A.010, which included wetlands, flood control, and other crucial public purposes, elimination of the eminent domain option would be highly detrimental to the public interest.

        C. SB 326, if amended to take effect retroactively, will affect the currently pending litigations.

It is difficult to predict exactly how a retroactive SB 326 would affect the cases. Our legal analysis is not complete. It is the intent of this letter that it assist the committee in its decision-making process, but not be used as evidence against the County in any of the above cases.

The possibilities are as follows:

Evans Creek might move to dismiss the County’s eminent domain case using a retroactive SB 326 as authority. Since open space constituted a public use for which eminent domain could be used in 2004 under then-existing law, the County would argue SB 326 is unconstitutional special legislation that should not be given retroactive effect. Nev. Const. Art. 4, Section 20. Evans Creek participated in writing Section 1 of SB 326. To my knowledge, this is the only condemnation case now pending in the State of Nevada involving open space. Accordingly, the retroactivity would not have general, state-wide application, but would apply only to help Evans Creek defeat the public’s acquisition.

The County might also make other arguments, such as that the retroactive legislation is unconstitutional because it invades the province of the court, creating a separation of powers question. Normally, questions about the legality of the eminent domain (public use and necessity) are addressed to the trial judge.

If Judge Polaha honored a retroactive SB 326, the result might be dismissal of the eminent domain case. This could trigger an appeal by the County to the Nevada Supreme Court. If Judge Polaha refused to enforce a retroactive SB 326, the trial would proceed, but Evans Creek might appeal thereafter on SB 326 grounds. It appears SB 326 (if retroactive) could lead to more litigation, not less.

The dismissal of the County’s eminent domain suit might affect the federal case, but it is not clear exactly how. The possibilities include that the federal case would proceed, leaving the County exposed to the claim of $50 million in damages, but now without the remedy of acquiring the land and perhaps without the remedy of defending on the legality of the public use. Another possibility is that the federal judge would dismiss the civil rights case as mooted by legislative directive to the State Court to dismiss the eminent domain suit. A third possibility is that Evans Creek could dismiss the suit and go forward with its development. The amount of damages, and whether the federal case would survive the eminent domain case dismissal, or whether Evans Creek would even pursue it, also remain open questions. We have not heard, however, any commitment from Evans Creek to drop the federal case in exchange for the legislatures’ help in the eminent domain case. Other possibilities may exist. Our research is continuing.

The historical roads case might be the least affected of the suits. This case would probably continue and be resolved on its merits. Even this is not for sure. Our research is continuing.


Changing the law after the game has been played is very dangerous, because it creates a multitude of legal and practical problems. It is difficult to see how these can play out at this time. The statute should not be made retroactive.

SB 326, even prospective only, ties the hands of local government and puts the public in a difficult situation of either paying too much for land or of not acquiring it. We believe it is better not to blanketly forbid eminent domain in these cases, but to let each develop according to its own facts in the future.

In the end, this is not a good subject for legislation, in our view. Not only does it change existing law and create the problems outlined above, but by disturbing orderly court processes already underway, it deprives the courts of opportunities to resolve the issues via alternative dispute resolution. Mr. Chairman, in your remarks in last week’s hearing, you asked whether density transfer was a possibility. Just last week Evans Creek mentioned developing 184 lots on the property. This is substantially fewer lots than the County had previously understood were proposed for the property. The proper forum for exploring whether this development is consistent with the public’s open space needs is a judicially supervised process, where the legal rights of the landowner and the taxpayers can be worked out in a confidential manner and where the vested trial positions of the parties will not be prejudiced.

We request the committee not to legislate the existing eminent domain case. The committee’s encouragement and recommendation to the parties to avail themselves of all judicial options is preferable to legislation.




Michael G. Chapman
Attorney at Law


cc: Katy Singlaub
Karen Mullen
Melanie Foster

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