Appeals court denies request in Barsell dispute
The legal battle between the Town of Truckee and Barsell property owners took another twist this week when an appellate court in Sacramento denied a writ by Richard Barsell to appeal a portion of another judge’s earlier ruling.
Barsell is the managing member of Peoria-Sunnyside, LLC, which filed suit against the Town of Truckee about a year ago. The firm’s property lies on the southwest side of the Highway 267/Interstate 80 interchange, adjacent to Sierra Mountain Cemetery.
The court denied a writ of appeal, which would have separately appealed a ruling by judge John H. Darlington, who found the Truckee Downtown Specific Plan and Downtown Specific Plan Environmental Impact Report adequate.
In a ruling Nov. 23, 1998, in Nevada County Superior Court, Darlington decided against one of six causes for action stated in the suit by Peoria-Sunnyside, LLC, and stated that the Downtown Specific Plan and the Downtown Specific Plan Environmental Impact Review were both legally adequate.
“The subject EIR is not perfect, but it contains sufficient relevant information to allow informed decision-making and informed public participation,” Darlington wrote. “For the reasons set out above, the court finds the EIR is adequate.”
The suit alleged that the Downtown Specific Plan’s EIR was done too late, with inadequate analysis of alternatives, inadequate cumulative analysis and without consideration of the possible closure of ramps at I-80 and Highway 267.
“Because there were a whole bundle of causes, the court normally has to decide the whole case before any are subject for appeal,” Truckee Community Development Director Tony Lashbrook said. “They tried to appeal just the decision about the EIR and it was rejected.”
Three issues raised in the suit must still go to trial.
“The upshot is that the court has now set for trial three key issues,” attorney Lawrence Hoffman, who represents Peoria-Sunnyside, L.L.C., said in May. “Those issues deal with whether or not Mr. Barsell’s property was improperly zoned on a spot-zone basis, whether the town is responsible for a taking action, and third, a discrimination and civil rights case.” He said the case is set for a jury trial in November 1999.
In her summary judgment in May 1999, Judge Kathleen Butz of Nevada County Superior Court ruled in favor of the town on issues including:
— A judicial determination finding that the plaintiff’s application for a conditional use permit for the Truckee Retail Center is not “deemed approved” by operation of law.
— A judicial determination that the Town of Truckee can prevent the plaintiff from having its pending application for Conditional Use Permit 94-139 now “deemed approved” as a matter of law.
Remaining issues in the suit include:
— A judicial determination and damages against the Town of Truckee to pay compensation to the plaintiff for the loss of economic use of his property during the alleged delay imposed by the town.
— Alternatively, even if the Downtown Specific Plan and accompanying EIR on which it is based are found to be adequate as a matter of law, the suit calls for a judicial determination that the plaintiff’s property has been improperly singled out for discriminatory and invalid “spot zoning” based on what the suit alleges were improper legislative motives which denied the plaintiff the equal protection of the law. It calls for the alleged “spot zoning” to be therefore set aside and to have no more force or effect.
— A judgment and damages to be determined at trial by jury, providing the plaintiff with Constitutionally required just compensation and damages in an amount to be determined, for what the suit claims was the “taking” of the plaintiff’s property without just compensation.
The suit followed close on the heels of a November 1997 decision by the Truckee Town Council to limit development on the property to 32,000 square feet, in accordance with the recently adopted Downtown Specific Plan’s requirements. The council approved 10,000 square feet for use as restaurant space, and 22,000 square feet for mixed commercial, including a visitor center.
The company had initially submitted a proposal in 1994 for a retail center with 88,665 square feet of commercial space in seven separate low-rise buildings, along with a 1,200-square-foot information center.
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