Electronically Filed 01/09/2017 03:16:52 PM 1], AAcc Wien jb besime JUSTIN JONES, ESQ. Nevada Bar No, 8519 WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP 3556 E. Russell Road, Second Floor Las Vegas, Nevada 89120 (702) 341-5200/Fax: (702) 341-5300 jiones@ wrslawyers.com ‘Attorneys for Defendant, Save Red Rock CLERK OF THE COURT win wr DISTRICT COURT CLARK COUNTY, NEVADA Seer) CLARK COUNTY, a political subdivision of | Case No. A-16-747882-C 11] the State of Nevada, Dept. No.: XXX 12 Plaintiff, 13 vs. DEFENDANT SAVE RED ROCK’S 14 || SAVE RED ROCK; GYPSUM RESOURCES, | ANSWER TO COMPLAINT AND LLC; DOES -X; DOE PARTNERSHIPS L-X; | COUNTERCLAIM 15 |] ROE CORPORATIONS I-X, 16 Defendants. SAVE RED ROCK, a Nevada non-profit 18 || corporation, 19 Counterclaimaint, 20 vs, 21] CLARK COUNTY, a political subdivision of the State of Nevada, Counterdefendant. 25 Defendant SAVE RED ROCK, by and through its attomeys of Wolf, Rifkin, Shapiro, 26 | Schulman & Rabkin, LLP, hereby answers the Complaint of Plaintiff CLARK COUNTY, as 27 follows:win wr Seer) ft 2 a GENERAL ALLEGATIONS Save Red Rock admits the allegations in Paragraph 1 of the Complaint. Save Red Rock admits the allegations in Paragraph 2 of the Complaint. Answering paragraph 3 of the Complaint, Save Red Rock is without knowledge of the allegations contained therein and therefore denies the same. 4. Answering paragraph 4 of the Complaint, Save Red Rock is without knowledge of the allegations contained therein and therefore denies the same. 5. 6. 7. & 9. Save Red Rock admits the allegations in Paragraph 5 of the Complaint, Save Red Rock denies the allegations in Paragraph 6 of the Complaint. Save Red Rock admits the allegations in Paragraph 7 of the Complaint, Save Red Rock admits the allegations in Paragraph 8 of the Complaint, Answering paragraph 9 of the Complaint, Save Red Rock is without knowledge of the allegations contained therein and therefore denies the same. 10. Answering paragraph 10 of the Complaint, Save Red Rock is without knowledge of the allegations contained therein and therefore denies the same. u Answering paragraph 1 of the Complaint, Save Red Rock is without knowledge of the allegations contained therein and therefore denies the same. 12. Answering paragraph 12 of the Complaint, Save Red Rock is without knowledge of the allegations contained therein and therefore denies the same. 13. 14. 15. 16. 17. 18. 19. 20. 2 Save Red Rock admits the allegations in Paragraph 13 of the Complaint. Save Red Rock denies the allegations in Paragraph 14 of the Complaint. Save Red Rock denies the allegations in Paragraph 15 of the Complaint. Save Red Rock admits the allegations in Paragraph 16 of the Complaint. Save Red Rock admits the allegations in Paragraph 17 of the Complaint. Save Red Rock admits the allegations in Paragraph 18 of the Complaint. Save Red Rock admits the allegations in Paragraph 19 of the Complaint. Save Red Rock denies the allegations in Paragraph 20 of the Complaint. Save Red Rock admits the allegations in Paragraph 21 of the Complaint. 2win wr Seer) 22, Answering paragraph 22 of the Complaint, Save Red Rock is without knowledge of the allegations contained therein and therefore denies the same. 23, Save Red Rock denies the allegations in Paragraph 23 of the Complaint. 24, Save Red Rock denies the allegations in Paragraph 24 of the Complaint, 25. Save Red Rock admits the allegations in Paragraph 25 of the Complaint. 26. Answering paragraph 26 of the Complaint, Save Red Rock is without knowledge of the allegations contained therein and therefore denies the same. 27, Save Red Rock admits the allegations in Paragraph 27 of the Complaint. 28. Save Red Rock denies the allegations in Paragraph 28 of the Complaint, 29, Save Red Rock denies the allegations in Paragraph 29 of the Complaint, 30. Answering paragraph 30 of the Complaint, Save Red Rock is without knowledge of the allegations contained therein and therefore denies the same. FIRST CAUSE OF ACTION (Declaratory Judgment) 31, Answering paragraph 31 of the Complaint, Save Red Rock repeats and realleges and incorporate its responses to previous paragraphs 1 through 30 of the Complaint. 32, Save Red Rock admits the allegations in Paragraph 32 of the Complaint. 33, Save Red Rock admits the allegations in Paragraph 33 of the Complaint. 34, Save Red Rock admits the allegations in Paragraph 34 of the Complaint. 35, Save Red Rock admits the allegations in Paragraph 35 of the Complaint. 36, Save Red Rock admits the allegations in Paragraph 36 of the Complaint. 37, Save Red Rock denies the allegations in Paragraph 37 of the Complaint, 38, Save Red Rock denies the allegations in Paragraph 38 of the Complaint, 39, Save Red Rock denies the allegations in Paragraph 39 of the Complaint. 40, Save Red Rock denies the allegations in Paragraph 40 of the Complaint. 41, Save Red Rock denies the allegations in Paragraph 41 of the Complaint. Wywin wr Seer) 42. SECOND CAUSE OF ACTION (Declaratory Judgment, In the Alternative) Answering paragraph 42 of the Complaint, Save Red Rock repeats and realleges and incorporate its responses to previous paragraphs 1 through 41 of the Complaint. 43. Save Red Rock admits the allegations in Paragraph 43 of the Complaint. Save Red Rock admits the allegations in Paragraph 44 of the Complaint. Save Red Rock denies the allegations in Paragraph 45 of the Complaint, Save Red Rock denies the allegations in Paragraph 46 of the Complaint. Answering paragraph 47 of the Complaint, Save Red Rock is without knowledge of the allegations contained therein and therefore denies the same. 48. 49. 50. 51 52. Save Red Rock denies the allegations in Paragraph 48 of the Complaint. Save Red Rock denies the allegations in Paragraph 49 of the Complaint. Save Red Rock denies the allegations in Paragraph 50 of the Complaint. Save Red Rock denies the allegations in Paragraph 51 of the Complaint. THIRD CAUSE OF ACTION (Declaratory Judgment, In the Alternative) Answering paragraph 52 of the Complaint, Save Red Rock repeats and realleges and incorporate its responses to previous paragraphs | through 51 of the Complaint. 53. 54, 55. 56. Save Red Rock admits the allegations in Paragraph 53 of the Complaint. Save Red Rock admits the allegations in Paragraph 54 of the Complaint. Save Red Rock denies the allegations in Paragraph 55 of the Complaint, Answering paragraph 56 of the Complaint, Save Red Rock is without knowledge of the allegations contained therein and therefore denies the same. 37. 58. 59. a ws Save Red Rock denies the allegations in Paragraph 57 of the Complaint. Save Red Rock denies the allegations in Paragraph 58 of the Complaint. Save Red Rock denies the allegations in Paragraph 59 of the Complaint.win wr Seer) FOURTH CAUSE OF ACTION (Declaratory Judgment, In the Alternative) 60. Answering paragraph 60 of the Complaint, Save Red Rock repeats and realleges and incorporate its responses to previous paragraphs 1 through $9 of the Complaint. 61, Save Red Rock admits the allegations in Paragraph 61 of the Complaint. 62, Save Red Rock admits the allegations in Paragraph 62 of the Complaint. 63, Save Red Rock admits the allegations in Paragraph 63 of the Complaint. 64, Save Red Rock denies the allegations in Paragraph 64 of the Complaint, 65. Save Red Rock denies the allegations in Paragraph 65 of the Complaint, 66. Save Red Rock denies the allegations in Paragraph 66 of the Complaint, 67. Save Red Rock denies the allegations in Paragraph 67 of the Complaint. 68. Save Red Rock denies the allegations in Paragraph 68 of the Complaint. 69, Save Red Rock denies the allegations in Paragraph 69 of the Complaint. 'H CAUSE OF ACTION (Declaratory Judgment, In the Alternative) 70. Answering paragraph 70 of the Complaint, Save Red Rock repeats and realleges and incorporate its responses to previous paragraphs | through 69 of the Complaint. 71, Save Red Rock admits the allegations in Paragraph 71 of the Complaint. 72. Save Red Rock admits the allegations in Paragraph 72 of the Complaint. 73. Save Red Rock admits the allegations in Paragraph 73 of the Complaint. 74, Save Red Rock admits the allegations in Paragraph 74 of the Complaint. 75, Save Red Rock denies the allegations in Paragraph 75 of the Complaint. 76, Save Red Rock denies the allegations in Paragraph 76 of the Complaint. TT. Save Red Rock denies the allegations in Paragraph 77 of the Complaint. 78, Save Red Rock denies the allegations in Paragraph 78 of the Complaint. AFFIRMATIVE DEFENSES The following affirmative defenses are alleged on information and belief by Save Red Rock, and except as expressly stated otherwise, each defense applies to the entire Complaint and 5.win wr Seer) to each purported cause of action or claim for relief therein and to the plaintiff on whose behalf this action is prosecuted. Save Red Rock reserves the right to amend or withdraw any or all defenses or to raise any and all additional defenses as or after they may become known during or after the course of investigation, discovery or trial No assertion of any affirmative defense shall constitute either (a) an admission that plaintiff does not bear the burden of proof or the burden of producing evidence on any element of any cause of action or claim for relief or on any issue as to which plaintiff bears the burden of proof or the burden of producing evidence as a matter of law, or (b) a waiver of Save Red Rock’s right to require that the plaintiff satisfy any burden of proof or burden for producing evidence. FIRS T AF! IRMATIVE DEFENSE The Complaint fails to state a claim for relief upon which relief may be granted ag: answering Defendant. SECOND AFFIRMATIVE DEFENSE One or more of Clark County’s claims are barred under Nevada’s anti-SLAPP statute, NRS 41.660. THIRD AFFIRMATIVE DEFENSE Clark County’s claims are barred by the doctrine of res judicata. FOURTH AFFIRMATIVE DEFENSI Clark County’s claims are barred by the doctrine of estoppel. FIFTH AFFIRMATIVE DEFENSE Clark County’s claims are barred by the doctrine of waiver. SIXTH AFFIRMATIVE DEFENSE Clark County’s claims are barred by the doctrine of unclean hands. SEVENTH AFFIRMATIVE DEFENSE Clark County’s claims are not ripe for judicial determination, EIGHTH AFFIRMATIVE DEFENSE Clark County claims fail to identify a present litigable controversy that would permit declaratory relief,win wr Seer) NINTH AFFIRMATIVE DEFENSE In the event further investigation or discovery reveals the applicability of any such defenses, Save Red Rock reserves the right to seek leave to amend this answer to specifically assert any such defense, Such defenses are herein incorporated by reference for the specific purpose of not waiving any such defense. COUNTERCLAIM COMES NOW the Counterclaimant SAVE RED ROCK, by and through its attorneys of the law firm of Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, and states the following as its counterclaim against Counterdefendant CLARK COUNTY, as follows ENERAL ALLE TIONS 1. Counterclaimant SAVE RED ROCK is a grassroots Nevada non-profit corporation committed to protecting the rural, recreational, and scenic nature of the Red Rock Canyon National Conservation Area (“RRNCA”), 2. Counterdefendant CLARK COUNTY is a political subdivision of the State of 3. Red Rock Canyon is an area located approximately seventeen miles west of downtown Las Vegas, Nevada. In 1990, the United States Congress passed special legislation designating Red Rock Canyon as Nevada's first ever national conservation area. 5. RRNCA is enjoyed by Clark County residents as well as visitors from the United States and many foreign countries. 6. Visitorship to Red Rock Canyon has increased substantially over the past few years. Now more than 2.5 million visitors each year enjoy the spectacular desert landscape, climbing and hiking opportunities, and interpretive programs of the RRNCA, Spring Mountain Ranch State Park and other areas in and around Red Rock Canyon. 7. In 2002, Gypsum Resources, LLC (“Gypsum”) acquired 2,464.5 acres of land in Red Rock Canyon. 8. The parcels that Gypsum acquired consist of several disjointed parcels, some atop 7.win wr Seer) Blue Diamond Hill and others along the Red Rock Scenic Byway (SR159). 9. Approximately 190 of the 2,464.5 acres acquired by Gypsum lie within the boundaries of the RRNCA, and thus are subject to substantial development restrictions. 10. In 2010, Gypsum proposed to develop two large parcels, consisting of 2,010.6 acres on Blue Diamond Hill in Red Rock Canyon (the “Project Area”), 11, The Project Area is zoned R-U, Rural Open Land, which allows for one dwelling unit per two acres, 12, The Project Area has been zoned R-U since Gypsum purchased it. 13. The Project Area is bounded on three sides by the RRNCA. 14, The two Project Area parcels touch only at a comer. That same corner is surrounded on both sides by parcels included within the RENCA. 15. The two Project Area parcels are not accessible to one another except by way of an easement granted by the Bureau of Land Management (“BLM”) across BLM lands not within the RRNCA. 16. In 2011, Gypsum submitted an application to Clark County, through its Major Projects process, for approval of a concept plan (the “2011 Concept Plan”) to develop its own parcels within the Project Area, as well as an additional 992 acres of BLM land (the “BLM Parcels”) adjacent to the Project Area that would connect Gypsum’s two disjointed parcels. 17. Gypsum’s 2011 Concept Plan proposed to build 7,269 dwelling units on the Project Area and BLM Parcels, a combined 3,466 acres. 18. The proposed average density of dwelling units in Gypsum’s original 2011 Concept Plan was 2.1 units per acre. 19, Gypsum’s 2011 Concept Plan proposed a maximum density greater than 8 dwelling units for more than half of the acres. 20, On August 17, 2011, the Clark County Commission heard Gypsum’s application for approval of the 2011 Concept Plan, 21, Save Red Rock and hundreds of community members appeared on August 17, 2011 to testify in opposition to Gypsum’s 2011 Concept Plan, expressing concerns ranging from -8-win wr Seer) damage to sensitive plant and animal species to disruption of the views in and from the RRNCA to increased traffic along Blue Diamond Road and the Red Rock Canyon Scenic Byway. 22, Despite near unanimous opposition to the 2011 Concept Plan from the community, the Clark County Commission approved the 2011 Concept Plan with certain conditions, including removal of the BLM Parcels from the approved plan. 23. One of the conditions the Clark County Commission placed on approval of the 2011 Concept Plan was a “limitation” on the density of dwelling units to 2.5 per acre across the Project Area, 24. The Clark County Commission did not articulate publicly how it arrived at the condition of an average of 2.5 dwelling units per acre. 25. While framed by the Clark County Commission as a limitation on development, the Clark County Commission’s condition of 2.5 units per acre actually increased the density of the project from the 2.1 units per acre proposed by Gypsum in the 2011 Concept Plan. 26. The Clark County Commission’s “limitation” to an average of 2.5 units per acre also increased the average allowable density from its existing R-U zoning of one per two acres by 500 percent, 27, After the Clark County Commission approved Gypsum’s 2011 Concept Plan, Gypsum failed to fulfill the requirements under Chapter 30 of the Clark County Code to move the proposed project through the Major Projects process. 28, Gypsum also failed to formally seek an extension of time to fulfill the requirements under Chapter 30 of the Clark County Code. 29, Accordingly, under Chapter 30 of the Clark County Code, Gypsum’s 2011 Concept Plan application expired. 30. On July 27, 2016, Gypsum presented the Red Rock Citizens Advisory Council (RRCAC”) with a summary of a new concept plan (the “2016 Concept Plan”) for development of its property in Red Rock Canyon, adjacent to the RRNCA, 31, Gypsum advised the RRCAC that because its 2011 Concept Plan had expired, it was in the process of submitting a new 2016 Concept Plan applicationwin wr Seer) 32, Upon information and belief, Clark County required Gypsum to pay the fees required under Chapter 30 of the Clark County Code for an application for review of its new 2016 Concept Plan, 33, Clark County thereafter employed substantial staff time in its Comprehensive Planning Department to review Gypsum’s 2016 Concept Plan. 34, Clark County thei jer noticed Gypsum’s 2016 Concept Plan for review and recommendation before the RRCAC on August 31, 2016. 35, At its August 31, 2016 meeting, the RRCAC recommended denial of Gypsum’s 2016 Concept Plan. 36. At no time during the two RRCAC meetings did Clark County staff take the position that Gypsum’s 2011 Concept Plan had not expired 37. Clark County thereafter scheduled Gypsum’s 2016 Concept Plan for review and recommendation before the Clark County Planning Committee on September 20, 2016. 38. At the September 20, 2016 Planning Commission meeting, Save Red Rock presented public comments raising a number of concerns with Gypsum’s 2016 Concept Plan, 39. The Planning Commission held its decision on Gypsum’s 2016 Concept Plan to October 18, 2016 to permit additional public outreach by Gypsum. 40, At the September 18, 2016 Planning Commission meeting, Save Red Rock again presented public comments raising a number of concerns with Gypsum’s 2016 Concept Plan. 4 the exception of the Gypsum’s developer representative, Ron Krater, and lobbyist, Jay Brown, public comment at the September 18, 2016 Planning Commission meeting was unanimously in opposition to Gypsum’s 2016 Concept Plan. 42, Written comment cards submitted regarding Gypsum’s 2016 Concept Plan were also unanimously in opposition to Gypsum’s 2016 Concept Plan, 43. Citing a number of concerns raised by the public, including, but not limited to, concerns raised by Save Red Rock, the Clark County Planning Commission, unanimously voted to recommend denial of Gypsum’s 2016 Concept Plan. 44, At no time during the two Clark County Planning Commission meetings did Clark -10-win wr Seer) County Comprehensive Planning staff or the Clark County Deputy District Attorney, Rob Warhola, who were present, take the position that Gypsum’s 2011 Concept Plan had not expired. 45. Likewise, at no time during the two Clark County Plan \¢ Commission meetings did Clark County Comprehensive Planning staff or the Clark County Deputy District Attorney, Rob Warhola, who were present, take the position that the Planning Commission could not consider the Clark County Comprehensive Master Plan as a basis for recommending denial of Gypsum’s 2016 Concept Plan. 46. Upon information and belief, shortly after the Clark County Planning Commission voted unanimously to recommend denial of Gypsum’s 2016 Concept Plan, the Clark County Commission held a meeting in private with Clark County Deputy District Attorney, Rob Warhola. 47, The meeting was not subjected to notice procedures under Nevada’s open meeting laws. 48. Upon information and belief, at the private meeting, the Clark County Commission acted to authorize Clark County Deputy District Attorney, Rob Warhola to file a lawsuit against Save Red Rock. 49, Upon information and belief, Clark County filed its action against Save Red Rock with the ulterior purpose of silencing Save Red Rock from raising concerns with Gypsum’s 2016 Concept Plan. 50. Upon information and belief, Clark County filed its action against Save Red Rock with the ulterior purpose of resolving certain legal issues it ostensibly has with Gypsum while avoiding actually bringing such claims for declaratory relief against Gypsum. 51. Asa result of Clark County to file a lawsuit against Save Red Rock. Rock has been forced to retain counsel to defend itself in this matter. FIRST CAUSE OF ACTION (Abuse of Process) 52, Save Red Rock repeats and realleges Paragraphs | through 51 of its Counterclaim, 53. Upon information and belief, Clark County filed its action against Save Red Rock 016 with the ulterior purpose of silencing Save Red Rock from raising concerns with Gypsum’ “lewin wr Seer) Concept Plan, 54, Upon information and belief, Clark County filed its action against Save Red Rock with the ulterior purpose of resolving certain legal issues it ostensibly has with Gypsum while avoiding actually bringing such claims for declaratory relief against Gypsum. 55. Save Red Rock is e' led to a presumption that Clark County’s aetions are willful because the Clark County Commission met in se to authorize the lawsuit ag: Rock, in violation of Nevada’s open meeting laws. 56. As a result of Clark County’s abuse of the legal process, Save Red Rock is informed and believes that it has been damaged in an amount in excess of $10,000.00. 57, As aresult of Clark County's abuse of the legal process, it has been necessary for Save Red Rock to retain the services of legal counsel for which Save Red Rock is entitled to recover such costs and expenses from Clark County. PRAYER FOR RELIEF WHEREFORE, Save Red Rock prays for judgment as follows: A. Foradeclaration of the rights, duties or other obligations of the parties; B. Foran award of compensatory damages to Save Red Rock for Clark County’s abuse of process; C. Foran award of pre-judgment and post-judgment interest to Save Red Rock; D. Foran award of its reasonable attorneys’ fees and costs incurred; and E, _ Forsuch other and further relief as the Court deems just and proper. DATED this 9th day of January, 2017. WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP B s/ Justin Jones TUSTIN JONES, ESQ. Nevada Bar No. 8519. 3556 E, Russell Road, Second Floor Las Vegas, Nevada 89120 Attorneys for Defendant, Save Red Rock -12-wren Seer) CERTIFICATE OF SERVICE [hereby certify that on this 9th day of January, 2017, a true and correct copy of the DEFENDANT SAVE RED ROCK’S ANSWER TO COMPLAINT AND COUNTERCLAIM was served by electronically filing with the Clerk of the Court using the Wiznet Electronic Service system and serving all parties with an email-address on record, pursuant to Administrative Order 14-2 and Rule 9 of the NEP.CR. By: /s/ Danielle Fresquez Dannielle Fresquez, an Employee of WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP “13+