LAS VEGAS (KTNV) — The staggering amount of money involved in the ongoing battle over the defunct Badlands golf course is enough to cripple the city.
It's already taken a big chunk out of the current Las Vegas city budget, and will have a significant ripple effect.
Today, two taxpayers spoke at a heated City Council meeting as the Badlands controversy erupted into a fiery exchange between the landowner and city officials. But that didn't stop the council from voting in favor of another appeal to the Nevada Supreme Court.
The 5-2 vote makes it clear that most councilmembers are willing to continue gambling with taxpayer money in a court that's already ruled against it in a similar Badlands case.
The risk is real, and continuing to fight the remaining cases could result in judgments totaling nearly half a billion dollars.
"I am beyond outraged," said taxpayer Karen Livingston, who spoke during public comment, calling out city leaders who keep voting to spend more money fighting a losing battle. In three cases so far, Clark County District Courts have determined the city illegally took developer Yohan Lowie's land by preventing the residential development for which the land is zoned.
"What don't you understand?" Livingston asked the council. "The facts of the four cases are similar in many ways, and you're going to lose millions of dollars more. This is not your money! It's the taxpayers' money. The city has failed miserably in its stewardship."
After losing its first appeal in a unanimous Nevada Supreme Court decision, the city in August paid off a $64 million dollar judgment. To pay for that, the city manager says they'll have to pause some capital improvement projects, sell some city land, and leave some vacant positions unfilled.
"You want to freeze hiring and take from projects that would benefit the citizens of Las Vegas. I ask, for what?! Continued large campaign contributions? What else could it be?!" Livingston asked.
If elected officials are supposed to represent taxpayers, those who spoke Wednesday say their voices are not being heard, and their concerns aren't being respected.
"City governments are supposed to be risk averse when it comes to taxpayers' dollars." said Lisa Mayo DeRiso during public comment. "This appeal is just going to burden the taxpayer with potentially up to $20 million more dollars on this item. I know that some of you want a $20 million homeless shelter, a $30 million Animal Foundation. Those are things the community needs but if you appeal this and lose, that $20 million is gone and none of those things are going to be able to happen."
The Badlands battle involves four cases representing four parcels of land on the 250-acre property. As described in an email Lowie's partner sent to city officials last week (full text below at the end of this story), city lawyers have said, on the record and under oath, that the state Supreme Court's ruling on the first case would impact the next one because the issues were legally and factually identical, so no other appeal would be necessary.
But on Wednesday, that all changed, and it almost happened in relative silence because the item was originally on the Consent Agenda until Ward 2 Councilwoman and mayoral candidate Victoria Seaman pulled it for discussion at the last minute.
"It's astonishing to think a matter of such importance could be placed on a Consent Agenda to sideline public comment," said Lowie's EHB Companies Partner Vickie DeHart. "Is it that you just didn't want the public to know that you've already filed your notice of appeal?"
As DeHart noted, the city had already filed notice of appeal with the Nevada Supreme Court before the council even voted on whether to file said appeal. When questioned about that, City Attorney Jeff Dorocek said it was done to meet a deadline and that they would've asked to have it dismissed if the council voted it down.
Taxpayer Lisa Mayo DeRiso saw it as a sneaky move designed to deceive the public. "Everybody needs to come clean on this! What is really going on? This cannot just be about litigating and losing. I urge you to vote no on the appeal. Cut your losses and start to solve this problem for the taxpayers of the community."
Dorocek told the council the appeal is part of the city's larger strategy to reach a resolution in any way possible. He and several councilmembers, including failed mayoral candidate Cedric Crear, said the judges who have ruled against the city are getting it wrong in the decisions they've made and in awarding Lowie judgments of nearly $250 million so far.
"We all know what's at risk with this type of number for the city," said Dorocek. "Public projects and public programs are at stake. Union, private sector, public sector job opportunities are at stake, and quality of life is at stake."
Mayor Pro Tem Brian Knudsen added, "The price tag we've been given is so astronomical that it would cripple the city. Our job is to defend the city and that is what we are doing—defending the city at all costs."
RELATED STORY | Berkley, Seaman spar over Badlands
When it was his turn to speak, Lowie told city leaders they had stripped him of his rights and destroyed his company.
"You've been denied by 11 judges," Lowie reminded the council.
Before he could really get going, he was interrupted by Mayor Carolyn Goodman who said, "Mr. Lowie, I hate to ask you... I'm looking at you as somebody I have known for years now, and you're in front of this body... Could I ask you to take your hat off, please?
Lowie did and proceeded to please his case.
"You're taking my property and you're going to zone it and sell it for much more. That's your intention. I know that's what you're doing."
He chastised the council for upending a previous settlement deal by changing terms at the eleventh hour. That settlement would have resolved all four cases for a total of $64 million, saving taxpayers tens of millions in comparison to what the courts have subsequently awarded.
"What has been done by councilpeople and by others in this city is criminal!" Lowie said. "It's way outside the law. This needs to end. You've got to stop this or you will destroy the city. You'll have no city. You destroyed our company and we're entitled to get paid for what you've done."
Mayor Goodman asked if the city could pause the legal battle to make another effort at settling the remaining cases. City Attorney Jeff Dorocek said no.
"I am in no position to feel competent to do other than continue to resolve this and get it done," Goodman said. "And the only thing we have the power to do is believe in attorneys, whoever they are, because it's in the courts."
Goodman ultimately voted in favor of the appeal. Only Victoria Seaman and Nancy Brune voted against it.
WATCH | More public money going to private lawyers in battle over Badlands
The vote comes one day after a District Court judge entered a ruling in the third Badlands case involving the 65-acre parcel. The court had already ruled against the city in that case, awarding Lowie $141 million for the land value. Tuesday's ruling added $1.4 million that the city must reimburse Lowie for property taxes he paid on the parcel. Another hearing in that case is set for Sept. 18 where the judge will rule on motions for interest, attorneys' fees and costs, which could add another $90 million to the total in that case alone.
**********
Text of email from Vickie DeHart to councilmembers:
"Dear Mayor Goodman and Members of the City Council:
On September 4, 2024, you will consider whether to “ratify filing an appeal” in the case of Fore Stars Ltd. v. City of Las Vegas, Eighth Judicial District case no. A-18-773268 – commonly referred to as the “17 Acre Case.”
The appeal is frivolous. On April 18, 2024, the Nevada Supreme Court issued the opinion in the companion 35 Acre Case and “wholly” affirmed “in their entirety” all findings of fact and conclusions of law entered by the district court in the 35 Acre Case. 180 Land Co v. City of Las Vegas, 140 Nev. Adv. Op. 29 (April 18, 2024). The Supreme Court ordered the City to pay just compensation for the taking by inverse condemnation of the 35 Acre Property.
The City’s attorneys have repeatedly represented to all district court judges that the 17 and 35 Acre Cases are legally and factually “identical” and the 35 Case Supreme Court opinion must be applied in the 17 Acre Case. The following is just one example in a pleading, submitted to the Court under oath, where this representation was made in the 17 Acre Case by the City’s own attorneys:
[O]nce the Nevada Supreme Court decides the 35-Acre appeal and issues a remittitur in that case, this Court can simply enter summary judgment consistent with the Nevada Supreme Court’s decision in the 35-Acre appeal. No appeal will be necessary because the Supreme Court will have decided the legal issues required to dispose of the entire 17-Acre Case.
Having made the judicial admission that the cases are identical, any appeal is frivolous.
The cost to file the frivolous appeal is unjustifiable. The 35 Acre Case appeal was filed on April 25, 2022, and payment was made, following the Supreme Court opinion, on July 10, 2024 - a delay of 807 days. Applying this same delay of 807 days for the 17 Acre appeal, results in the following additional amounts that will be owed in interest in the 17 Acre Case, in the event you “ratify filing an appeal:” $80,832,522.60 (due on 9/4/24) x 10.50% (prime + 2%, compounded) @ 807 days = $20,004,857.88.
And, this does not even account for the attorney fees the City will pay for the frivolous appeal.
Therefore, a vote to “ratify filing an appeal” in the 17 Acre Case is a vote to “ratify” an additional payment of approximately $20,004,857.88."