Developer sues over denial of proposed new homes

Dan Kulin

Wednesday, April 9, 2003 | 9:32 a.m.

A Las Vegas-based development company is suing Henderson over a rejected zoning change that would have allowed new homes between an ice cream plant and the Calico Ridge neighborhood.

Holden Development Co. filed the lawsuit last week asking the court to declare that the City Council's denial was "discriminatory, arbitrary, capricious and abuse of discretion." It also seeks attorney fees, court costs and unspecified damages.

However, the company is not asking the court to overturn the council's decision, which Holden said was a "legal decision." He referred further questions to attorney Paul Larsen, who did not return telephone repeated phone calls.

The suit states the council's decision cost the company at least $10,000, which Daniel Holden, managing member of the company, said was a threshold amount for filing the suit. He said the actual damages are "significantly more" but would not elaborate.

The council on March 18 denied Holden Development's request to change the zoning on 20.5 acres known as Eagle Rock from industrial to residential. Council members said they did not want to put more residents close to the Good Humor-Breyers Ice Cream plant because of the amounts of the ammonia used in the refrigeration process.

Before voting, the council heard from Michael Cyphers, the city emergency management coordinator, who said if a 6,600 pounds of the toxic gas escaped from the ice cream plant, dangerous levels of ammonia could be found within 2,300 feet of the ice cream plant.

All of the proposed 84 homes in Eagle Rock were within that area, as are about 200 homes in the Calico Ridge community and part of the planned Tuscany development. If such an accident occurred, the nearby Calico Ridge residents would be safe if they went indoors, closed all doors and windows, turned off air conditioners and waited until the gas dissipated, Cyphers said.

The plant uses about 99,000 pounds of ammonia gas. Cyphers said he looked at a potential release of 6,600 pounds of the gas as a "reasonable scenario" if one of the largest single tanks at the facility was damaged.

Holden said the warnings were a "red herring."

If city officials truly believed the plant were unsafe, the city would have shut down the plant and not allowed other nearby residential developments, he said.

Henderson City Attorney Shauna Hughes said that line of reasoning is disingenuous because the safety concerns are about a potential accident.

"I hope their excellent safety record continues, but the possibility (of an accident) exists," Hughes said.

The potential danger of the ammonia at the plant was not considered when the council approved plans for Tuscany and other surrounding developments, Hughes said. Now city staff members are reviewing whether changes need to be made to the Tuscany project, she said.

Holden's suit is set to go before District Judge Kathy Hardcastle. There is no court date yet.