Dismissal of Dorsey project lawsuit appealed
Environmentalist organizations in Nevada County are appealing a judge’s decision to dismiss their lawsuit against the Dorsey Marketplace project, lawyers for both parties say.
On July 29, the plaintiffs — Community Environmental Advocates (CEA) and Protect Grass Valley — who filed the original lawsuit in August 2020, formally submitted a Notice of Appeal in court, records show, which means that the case will now be considered by California’s Court of Appeal, 3rd Appellate District.
CEA and Protect Grass Valley are asking the appeals court to reverse Nevada County Superior Court Judge Tom Anderson’s June decision to dismiss their case. If the dismissal is reversed, the petitioners hope that the appeals court will either rule in the lawsuit’s favor outright or at least refer the case back to a lower court for a new trial, according to David Ruderman, who is the lawyer for the defense.
CEA and Protect Grass Valley’s appeal will argue that Anderson did not sufficiently take into account the severe and imminent environmental threat that the Dorsey project potentially poses to the surrounding community, according to Tal Finney and Bruce Tepper, who are lawyers for the plaintiffs.
These environmental concerns include the claim that the project, which would be on the site of the former Spring Hill Mine, could expose the surrounding community to toxic contaminants typically associated with abandoned mines. Other risks to the environment mentioned in the lawsuit included concerns that the project poses risks to the city’s water supply, could increase harmful greenhouse gas emissions, and could increase noise pollution and traffic in the surrounding area.
In his June 18 ruling, Anderson rejected all of the lawsuit’s claims. Among other considerations, the judge’s ruling found that the litigation lacked merit, as the city’s assessments and analysis of the environmental risks posed by the project, in conjunction with measures the developers had taken to mitigate those risks, had already reasonably addressed any outstanding concerns.
In their litigation, the plaintiffs had argued that in approving the Dorsey project, Grass Valley had failed to investigate the toll that the finished development would take on Grass Valley’s water supply, including potentially adverse impacts on the community’s groundwater reserves. In his dismissal, Anderson ruled that based on state guidelines, the Dorsey project was not large enough in scale to necessitate further assessments of the development’s impact on water supply.
Finney said the ruling failed to consider the overall context of water supply issues both in Nevada County and statewide. Drought conditions across California, which are of heightened concern in Nevada County, in tandem with the depletion of state and local groundwater reserves, should be a part of assessing the Dorsey project’s impact on water supply, he said.
“The water shortage issue here is getting worse and worse. California’s water levels are seriously dangerous…you have wildfires increasing across the state and in Nevada County, the drought continues to be a huge problem, and the state’s water tables are so low and that’s a serious problem,” Finney said.
Tepper agreed with Finney that Anderson had ignored the project’s potential long-term impacts on the community’s water supply within the context of the state and local water crisis. Additionally, Tepper asserted that the city’s 2019 environmental impact report that cleared the Dorsey project for development had failed to identify a clear and sustainable source of water for the project, leaving potentially adverse effects on the community’s water supply unresolved.
“The water issue is just worse and worse, especially now as we go through the summer, and the city…did not identify a clear source of water as required these days,” Tepper said. This consideration was also left unaddressed by Anderson’s ruling, the attorney contended.
Finney and Tepper also expressed their view that throughout the case’s trial, the judge acted as though he already had his mind made up against the lawsuit, not always giving the plaintiffs sufficient time or consideration in court hearings. In one specific hearing, Finney claimed that the petitioners only had five minutes to present their argument, while the defense was given closer to 45 minutes in their rebuttal.
“The trial court’s treatment of the issues appeared to not take into consideration the issues we had raised…the court seemed to have a predetermined position about the matter,” he said.
In front of the appeals court — which will be constituted by a panel of three justices — Finney expressed optimism that his client’s claims would receive more serious consideration, increasing the likelihood of the litigation’s success.
Conversely, Ruderman asserted that the plaintiff’s suit had very little chance of prevailing, as appeals court justices typically defer to the trial court’s ruling. This norm is only broken in rare and exceptional cases where the appeals court finds overwhelming evidence that the lower court failed to consider something that could have changed the outcome of the ruling, he said.
“We’re really confident that this may take some time, but we’re going to prevail at the appeals court,” Ruderman said. “It would have been hard for them to win at the trial court…which they didn’t, and now it’s going to be even harder for them, as the appeals court presumption is that the previous judgment is correct.”
The timeline of how the appeals process will unfold is hazy, and if anything the appeal will likely be on the longer side in terms of reaching a resolution, as the 3rd District court is the second busiest court in the state, Ruderman said. In the next several months, the plaintiffs are expected to take the first step in the appeals process by filing briefs stating their grounds for why Anderson’s ruling should be reversed, but it could easily take up to two years before a a final judgment is issued, he added.
The Dorsey development has still not begun construction despite Anderson’s ruling in the project’s favor, as the project’s backers will likely await the results of the appeal, project manager Warren Hughes has previously stated.
If completed, the Dorsey development would entail the construction of 172 residential units with solar panels, 104,250 square feet for commercial usage, and 8,500 square feet of office space.
Developer and investor Russell Jeter originally pitched the proposal to Grass Valley in 2014, claiming that the project would create hundreds of jobs and generate up to $100 million in taxable sales.
Stephen Wyer is a staff writer with The Union. He can be reached at firstname.lastname@example.org
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