In late 2002, a battle between Clark County commissioners erupted over a proposed housing development beneath busy airport flight paths.
Then-Commissioner Erin Kenny was determined to re-zone the property for homes despite strong objections from McCarran International Airport and county planners who wanted to keep homes away from such hazardous zones, county officials said.
In federal court Friday, defense attorneys for real estate consultant Donald Davidson hoped to delve further into that 2002 controversy. Defense attorneys hoped to establish that Kenny had an incentive to push through the zone change: a significant payoff she expected from a local developer.
But Davidson’s lawyer, Dominic Gentile, quickly hit a roadblock.
When Gentile questioned Kenny on Friday about the zoning matter, Kenny could not recall the zone change or any facts surrounding the contentious debate that took place on Dec. 4, 2002.
Davidson is charged with paying Kenny $200,000 after she guided through a controversial zone change and special use permit for a CVS Pharmacy at Buffalo Drive and Desert Inn Road in 2001. He also is accused of delivering $3,000 a month to Kenny after she voted in favor of a casino in the Spring Valley neighborhood in 2001.
At the time of the CVS proposal, Davidson was lobbying on behalf of Tommy Fehrman, a land broker in negotiations to buy the five acres at Buffalo and Desert Inn. After the zoning was changed from residential to commercial, Fehrman sold 1.5 acres to CVS Pharmacy for $1.5 million.
Gentile contends that one year later Kenny stood to receive another $200,000 if she successfully lobbied her colleagues to change the zoning on 32 acres at Tenaya Way and Sunset Road from commercial to residential. The land is below airport flight paths.
Gentile told jurors during his opening statements that while Davidson was involved in the CVS negotiations, he had nothing to do with Fehrman’s second project under the McCarran flight paths. He suggested that since Fehrman is the common factor in both zone changes, it was Fehrman who paid Kenny the $200,000.
Kenny’s accountant, Daniel Geiger, told jurors Wednesday that he heard Kenny had expected to receive another $200,000 one year after she received the payment for the CVS Pharmacy. He said he did not know whether the money was to be from the same source.
The money never arrived because the zone change was reversed, Gentile said.
On Dec. 4, 2002, approvals by Kenny and Commissioners Dario Herrera, Mary Kincaid-Chauncey and Myrna Williams were enough to pass the zone change. But Commissioner Bruce Woodbury, who strongly opposed the project, voted along with them.
Woodbury’s move was strategic. The vote in favor of the project allowed Woodbury to request that the proposal be brought back on a later agenda. He said he planned to place it on an agenda after Kenny left office in 2002.
Kenny, who testified she has suffered memory loss since an illness in late 1999, said Friday she recalled Woodbury had requested that a zoning matter be re-considered. However, she could not remember the issue or whether it involved building homes in the airport’s flight paths.
"I do not recall," Kenny said.
Former Clark County Manager Thom Reilly clearly remembered the battle that followed Woodbury’s vote.
"Erin and I got into a screaming match," Reilly told the Review-Journal on Friday. "I told her she was out of control; it was bad. It was bizarre. She demanded it be placed on the next agenda."
Reilly said Kenny was known for her aggressiveness around the Clark County Government Center but he had never seen her so "wild."
"I told her, ‘It doesn’t make sense; what are you so wild about?’ " Reilly said.
Gentile on Friday ended his cross-examination of Kenny after about 40 minutes because the former commissioner responded to few of his questions.
Kenny pleaded guilty in 2003 to pocketing cash bribes from strip club owner Michael Galardi. She signed a plea agreement and is cooperating with the federal government. If she provides substantial assistance to the prosecution she can receive a more lenient sentence.
Her memory problem came to light last year, when she testified against Kincaid-Chauncey and Herrera, who were ultimately convicted of taking bribe money from Galardi.
Kenny said she suffers from vertigo.
Local health care officials told the Review-Journal last year that it would be highly unusual for vertigo to cause memory loss. Kenny testified earlier this week that the cause of her memory loss has never been diagnosed.
While Kenny could not recall the contentious zone change she so aggressively attempted to push through in 2002, she clearly remembered details about why a CVS Pharmacy was suitable for the corner of Buffalo and Desert Inn. She told jurors that at the time of the 2001 vote, 60,000 to 80,000 vehicles traveled Desert Inn daily.
Gentile showed Kenny a copy of her commission appointment book for the month of December 2002. Kenny had a meeting scheduled with Fehrman on Dec. 3 and a second meeting on Dec. 5. Kenny said she did not remember whether she met Fehrman on the days that surrounded the zoning hearing.
Fehrman has denied any wrongdoing.
He said the only payments he made to Kenny were legitimate campaign contributions during her 2002 race for lieutenant governor.
Fehrman testified earlier this week that he paid Donald Davidson $200,000 in "success fees" for successfully lobbying for the zone change in November 2001 and special use permits in December 2002 related to the CVS Pharmacy.
Davidson directed Fehrman to write the checks to his son, Lawrence Davidson, Fehrman said. Geiger testified that he and Lawrence Davidson later established an off-shore account to hide the illegal payments.
Also on Friday, Mark Kincaid, the son of Kincaid-Chauncey, testified that on behalf of Donald Davidson, he had asked his mother whether she supported the zone change at Buffalo and Desert Inn.
He said Davidson wrote him a check for $1,000 on Dec. 17, 2001.
On Jan. 22, 2002 Kincaid received $10,000 from Fehrman’s company. Fehrman said he issued the check at the direction of Davidson.
Kincaid testified that in the fall of 2001, Davidson asked him to question his mother about a separate project proposed by developer Jim Rhodes. Kincaid said his mother did not support the project, but Davidson still delivered $1,000 to him.
"He said, ‘This is for you to help with your bills,’ " said Kincaid, who added that he did not share the money with his mother.