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Did the Deal Between Squaw and the Attorney General Violate the Brown Act? A Court is Set to Decide.

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Last fall, at the Nov. 15 Placer County Board of Supervisors hearing on the Squaw Valley Village expansion project, an announcement shocked the packed room — surprise news that is now at the heart of a lawsuit scheduled for trial next March.

The 11th-hour addition was made to the Village project’s development agreement, which was approved 4-1 by the county board at the November meeting, and outlined a deal between Squaw Valley Ski Holdings and the California attorney general’s office. Three months earlier, the attorney general’s office had sent a strongly worded 15-page letter (see pdf download at right) to Placer County expressing concerns that the project’s environmental impact report did not adequately analyze impacts to Lake Tahoe.

"We … hope that the County will undertake a full consideration of the Project’s impacts to Lake Tahoe and GHG [green house gas] emissions prior to certifying the environmental document and reviewing the Project for approval,” wrote Deputy Attorney General Nicole Rinke in the Aug. 9, 2016, letter to the Placer County Board of Supervisors.

“Although we do not concur with the analysis, payment of the TRPA Air Quality Mitigation fee for this project will suffice to address our concerns regarding Lake Tahoe’s water quality and, contingent upon execution of these agreements, the Attorney General will not be filing litigation on Placer County’s approval of the project,” wrote Rinke in a Nov. 14 email to lawyers representing SVSH and Placer County.

This deal is the focus of a Brown Act lawsuit filed by Sierra Watch against Placer County and SVSH last December. Earlier this month the Placer County Superior Court dismissed a county challenge to the lawsuit and ruled that it could go forward, scheduling a trial date for March. Sierra Watch claims that the agreement between SVSH and the attorney general violated California’s open meeting law, while the defendants argue that the deal was part of items included in the agenda.

Sierra Watch’s lawsuit alleges that county staff, in violation of the Brown Act, gave documents to the Board of Supervisors less than 72 hours before the public meeting, did not make those documents available to the public, and failed to add the agreement to the agenda for the November hearing.
“It was a shock and surprise to everyone in the room,” said Sierra Watch Executive Director Tom Mooers of the Nov. 15 hearing, when the public learned of the attorney general deal for the first time. “It’s not reasonable to have a public process and not let the public have an opportunity to address the most important issue.”

However, SVSH says the arrangement with the attorney general is part of the development agreement, which was on the agenda and available to the public. According to SVSH’s environmental attorney Whit Manley, it is not unusual for agreement updates to be made up until the last minute before a hearing. The amendment outlining the attorney general deal was added to the development agreement the evening before the hearing, Manley said.
“There was no separate agreement, just an amendment to the development agreement. It was a paragraph in an 80-page document,” Manley said. “This does not violate the Brown Act because the item was on the agenda … Revisions or amendments to documents happen all the time after the posting of the agenda.”
Documents that are on an agenda can be amended before a public meeting, said Steve Gross, an attorney who represents several public agencies in the area and is a partner at the Porter Simon law firm in Truckee.

“The purpose of an agenda is to give the public notice of what is going to be discussed,” he said. “The Brown Act is not limited to only approving the exact form of the document on an agenda; we’d never get anything done.”
However, Gross noted that what could be up for debate is whether the item at issue is a new agreement or part of the existing agreement.

“As long as they are talking about that agreement, and not a new agreement, not something the public wasn’t aware of … that would be Brown Act compliant,” he said.

It will be up to the court to decide the matter. On Sept. 7, Placer County Superior Court ruled that the county’s request for a demurrer — which means that even if the defendant assumes the allegations are true, there are not sufficient grounds to justify legal action — was overruled.

However, Placer County is optimistic that it will prevail in the case.

The ruling on the demurrer simply means that Sierra Watch’s complaint survived the initial pleading stage, and the court is now free to look at and evaluate the facts of the matter,” wrote Clayton Cook with the Placer County counsel’s office in an email to Moonshine Ink. “We’re confident that once the facts are provided, it will be clear that the county complied with the Brown Act in all respects during the Nov. 15, 2016, Board of Supervisors meeting.”

Sierra Watch claims that if it prevails in the case, Placer County could be required to rescind the November approvals and hold a new public hearing on the development. However, Manley argues that only the agreement with the attorney general would be rescinded, which would mean that the ski resort would no longer be required to give $440,862 to the TRPA.

“It’s sad to see a self-described environmental group use legal maneuvers to delay and ultimately try to take away close to $500,000 of voluntary funding that would be used to protect Lake Tahoe’s pristine, clear waters,” Manley said in a written statement.

The trial is set for March 6 at the Placer County Superior Court in Roseville. A separate trial regarding Sierra Watch’s California Environmental Quality Act lawsuit against the county and SVSH is also scheduled for March.

 
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December 14, 2017