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Barsell property legal battle

JOHN A. BAYLESS , Sierra Sun

A legal battle between the town and the owners of the Barsell property off Interstate 80 east of downtown reached another milestone two weeks ago when a judge refused to give the town summary judgment on three points in the suit.

Richard 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/I-80 interchange, adjacent to Sierra Mountain Cemetery.

Three issues raised in the suit must go to trial.

“The upshot is that the court has now set for trial three key issues,” said attorney Lawrence Hoffman, who represents Peoria-Sunnyside, L.L.C. “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.”

Five-day jury trial

He said the case will be set for a five-day jury trial in November, and he will file a writ of appeals regarding environmental impact report issues denied in 1998 by Judge John H. Darlington.

In her recent summary judgment, 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.

In a ruling Nov. 23, 1998, in Nevada County Superior Court, Judge 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.


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