a. Health and welfare/Substantial relationship.
"The great weight of authority convinces us that these sections [allowing
only residential buildings & sheds], as applied to the property involved
in this case [church], bear no substantial relationship to the promotion
of the health, safety, morals, convenience, property, or general welfare
of the city of Reno, or of its residential district, and that they constitute
an invasion of the property rights of petitioner corporation." at 239.
[and violation of federal and state constitutions - due process; at 246]
2. State v. Coleman, 67 Nev. 636, 224 P.2d 309 (1950).
a. Neighbors/Reliance. "Respondent properly calls attention to the situation of petitioner's neighbors who have purchased and built homes in this district in their reliance on the continued effectiveness of the ordinance and the land use plan and the classifications therein provided...." at 640. [upholds denial of bldg. permit which would have allowed conversion to duplex not permitted in zone]
b. Discretion/Police power/Health and welfare/Constitution. "The various grounds of the several courts supporting such ordinances are discussed at length, and we refer to the opinion in that case [Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 120, 71 L.Ed. 303] and the annotation following as forever settling this exercise of the police power, unless it clearly appears that the ordinance is arbitrary and unreasonable and has no substantial relation to the public health, safety, morals or general welfare." at 641.
c. General/Health and welfare. "The court recognizes the fact that the matter of zoning has received the attention of commissions and experts whose reports bear every evidence of painstaking consideration, and that they concur in the view that the segregation of residential, business and industrial buildings 'will increase the safety and security of home life, greatly tend to prevent street accidents, especially to children, by reducing the traffic and resulting confusion in residential sections, decrease noise and other conditions which produce or intensify nervous disorders, preserve a more favorable environment in which to rear children, etc.'" at 641.
d. Scope of review/Health and welfare/Substantial relationship/Discretion. "Unless we can say that the ordinance, as it affects petitioner's property, discloses an unreasonable or arbitrary exercise of power by the zoning authorities and has no substantial relation to the public health, safety, morals or general welfare, it is neither the duty nor the province of this court to interfere with the discretion invested in these authorities." at 641.
e. Health and welfare. "Petitioner's incidental
inconvenience and damage must give way to the // health, comfort, welfare
and safety of the public, and his use of his property may be reasonably
restricted accordingly. He may use it for the purposes for which other
property in the district may be used." at 643-644.
3. Teacher Bldg. Co. v. Las Vegas, 68 Nev. 307, 232 P.2d 119 (1951).
a. Vacation/Judicial review. "While the question
of the necessity for closing a street or highway may belong exclusively
to the legislative department of the government, still the question of
public purpose or use remains subject to court review. As a rule, in such
cases, the court will permit the defendants to make the issue and present
evidence in support of it, unless it is manifest from the pleadings and
proceedings that such closing is for the public interest. There are sufficient
allegations in the complaint, if established by proof, to raise serious
doubt as to whether // the vacation was for the public interest. This would
not appear to be a case where it is manifest that a vacation is for the
public interest." at 323-324.
4. Primm v. City of Reno, 70 Nev. 7, 252 P.2d 835 (1953).
a. Preemption. "Each type of regulation [zoning and gaming licensing] is the subject of separate and distinct legislative authority." at 15.
b. General. "Regulation of land use through zoning has become desirable in urban communities in order that a reasonable and orderly segregation of residential, commercial and industrial areas be had. Such regulation is primarily concerned with uniformity of land use and stability of community growth. It is general and comprehensive in scope and the considerations which govern it are, accordingly, general and comprehensive." at 15.
c. Preemption. "We need not here decide as to the legality of land use zoning as a method of control in the distribution or limitation of businesses which, by virtue of their character, are made subject to regulatory control of that nature. It should in any event at least be clear that the regulation of land use by zoning does not preclude and is not inconsistent with independent regulatory limitation or distribution of businesses pursuant to independent statutory authority." at 17.
d. General/Vested rights. "To say, then, as
the land use ordinance says, that it is desirable in the public interest
that such gambling establishments as may be licensed should (together with
other businesses) be segregated within a specified commercial zone, does
not mean that all property within that zone may, in the public interest,
be devoted to gambling. To say that all property within that zone is generally
adaptable to gambling use gives it no vested right to such use." at 18.
5. Henderson v. Henderson Auto, 77 Nev. 118, 359 P.2d 743 (1961).
a. Record/Equal protection. "However, it does not appear from the record, nor is it contended that any evidence was given or statements made before the city council at the meeting at which the council rejected respondent's application, other than statements which were made by counsel for the interested parties, including a statement made by counsel representing a protestant to the granting of respondent's application. Likewise, nothing appears in // the record as constituting the basis upon which the council denied respondent's application while, at the same time, it granted a use permit to the other applicant for the operation of a wrecking yard in the same M-2 district." at 121-122.
b. Discretion. "It is recognized that the recommendation of approval given by the city planning board, after a public hearing on two separate occasions, was not binding upon the council in the exercise of the city council's discretion; however, it was a circumstance which the trial court was entitled to consider, together with the other matters referred to, in determining whether the council had denied respondent's application in the proper exercise of its discretion or whether there had been an abuse of that discretion." at 122.
c. Burden/Discretion. "Respondent, as plaintiff before the trial court, was required to establish abuse of discretion on the part of the city council...." at 122.
d. Discretion/Substantial evidence. "Such showing of an abuse of the discretion vested in the council was established before the trial court by respondent's showing of a lack of substantial evidence before the council...." at 122.
e. Scope of review/Discretion. "Concededly,
the action taken by the city council in its administrative capacity...would
not warrant interference by the trial court except where there was a manifest
abuse of discretion. Here, however, where there was no evidence to support
the council's actions, the trial court's action was proper." at 122.
6. McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961).
a. Scope of Review/Substitute judgment. "Respondents recognize the general rule that a court is not empowered to substitute its judgment for that of a zoning board, in this case the board of county commissioners." at 240.
b. Due process. "All persons wanting to speak for or against the requested amendment were given an opportunity to do so." at 240.
c. Trial de novo/Substantial evidence. "The lower court had before it the same evidence as // the board. Its function was not to conduct a trial de novo, but to ascertain as a matter of law if there was any substantial evidence before the board which would sustain the board's action. The function of this court at this time is the same as that of the lower court." at 240-241
d. Presumption/Amendments. "The presumption of validity which attaches to local zoning enactments includes also amendments thereto which constitute rezoning." at 242.
e. Discretion. "A trial court should uphold discretionary action of a municipal body to the same extent as an appellate court upholds the discretionary action of a trial court." at 242.
f. Discretion/Police power. "Under the police power, zoning is a matter within sound legislative action and such legislative action must be upheld if the facts do not show that the bounds of that discretion have been exceeded." at 242.
g. Presumption/Substantial evidence/Discretion. "Because the board's action is clothed with the presumption of validity, and is supported by substantial evidence, in the absence of a showing of an abuse of its discretion, the lower court was without power to nullify the same." at 242.
h. Spot zoning/Motivation. "The test of spot
zoning is whether the amendment was made with the purpose of furthering
a comprehensive zoning scheme or whether it was designed merely to relieve
the land of a restriction which was particularly harsh upon that particular
land." at 243.
7. Urban Renewal Agcy. v. Iacometti, 79 Nev. 113, 379 P.2d 466 (1963).
a. Scope of review/Record. The trial court's function is "limited to a review of the record of information presented to the city council...." at 118.
b. Scope of review/Discretion. "Nevada has
recognized this principle for years in varying circumstances. We have not
distinguished between the scope of trial court review of a formal hearing
by a government body, Nevada Tax Commission v. Hicks, 73 Nev. 115,
310 P.2d 852; its review of such body's determination made after investigation
and a public hearing, McKenzie v. Shelly, 77 Nev. 237, 362 P.2d
268; and its review of a governmental body's discretionary ruling made
after investigation and inquiry, but without a formal hearing or a public
hearing, Douglas County Board of County Commissioners v. Pedersen,
78 Nev. 106, 369 P.2d 669. In each instance, the court's inquiry is limited
to the record of information presented to the governmental body. The court's
purpose is to ascertain whether, upon such information, that body acted
arbitrarily, capriciously, and abused its discretion.. Thus, a trial court
should sustain discretionary action of a governmental body, absent an abuse
thereof, to the same extent that an appellate court upholds the discretionary
action of a trial court." at 118.
8. Smith v. City of Las Vegas, 80 Nev. 220, 391 P.2d 505 (1964).
a. Injunction. Affirmed city's injunction against continuing violation of zoning ordinance. "The ordinance specifically declares that a use in violation thereof is a nuisance, and may be enjoined. Such provisions clearly give the right to relief by injunction." at 224.
b. Record. Court ignored statements of the
trial court and in the brief of counsel referring to their personal knowlege
"of a great many facts that nowhere appear in the record." at 223.
9. Meredith v. Washoe Co. Sch. Dist., 84 Nev. 15, 435 P.2d 750 (1968).
a. General/Police power/Restrictive covenants.
"It is to be remembered that there are two basic devices for urban planning
and development; community zoning and restrictive covenants among private
individuals. The beneficial results of private land-use controls are readily
apparent throughout the country and are not merely confined to residential
subdivisions. Use of restrictions are encouraged by most planning agencies.
Indeed, restrictive covenants are held to be superior to zoning laws which
rest on police power." at 19.
10. Coronet Homes, Inc. v. McKenzie, 84 Nev. 250, 439 P.2d 219 (1968).
a. Burden of proof/Health and welfare. An ordinance placing the burden of proof on the special use permit applicant to prove that the use is necessary to promote the public health, convenience, safety and welfare, etc., is constitutional. at 254.
b. General/Variance/Use permit. "In essence an application for a use permit or a variance implies a challenge to the legality of the zoning ordinance as it applies to a specific piece of property. (citations omitted) In other words, a challenge to the validity of a zoning ordinance is a natural and foreseeable outgrowth of a request for a special use permit or variance." at 255.
c. General. "Zoning is a tool in the hands of governmental bodies which enables them to more effectively meet the demands of evolving and growing communities. It must not, and cannot, be used by those officials as an instrument by which they may shirk their responsibilities. Zoning is a means by which a government body and its citizens can plan and build for the future -- it may not, however, be used as a means to deny the future." at 255.
d. Scope of review/Discretion. "Courts are becoming increasingly aware that they are neither super boards of adjustment nor planning commissions of last resort. (citations omitted) Rather, the court acts as a judicial overseer, drawing the limits beyond which local regulation may not go, but loathing to interfere, within those limits, with the discretion of local governing bodies." (citation omitted) at 256.
e. Scope of review/Presumption/Burden of proof. "The zoning power is one of the tools of government which, in order to be effective, must not be subjected to judicial interference unless clearly necessary. For this reason, a presumption of validity attaches to a zoning ordinance which imposes the burden to prove its invalidity upon the one who challenges it." at 256.
f. General/Police power/Hardship/Substantial relationship/Use permit/Variance/Health and welfare. "The oft repeated, although ill defined, limitation upon the exercise of the zoning power, requires that zoning ordinances be enacted for the health, safety, morals or general welfare of the community. (citation omitted) Such ordinances must bear a substantial relationship to those police power purposes. (citation omitted) And if the ordinance does, in its application to specific properties, impose an 'unnecessary hardship,' it cannot be termed a reasonable or constitutional exercise of the police power. To preserve the validity of the zoning ordinance in its application to the community in general, the use permit and variance provisions of the ordinance function as an 'escape valve,' so that when regulations which apply to all are unnecessarily burdensome to a few because of certain unique circumstances, a means of relief from the mandate is provided." at 256.
g. General/Neighbors/Health and welfare. "Zoning laws are passed in the interest of the public welfare and the benefit accrues not only to the municipality but also to the neighboring land owners." at 257.
h. Reliance/Use permit/Variance. "Too often a property owner will, after careful consideration, select a site and build in conformity with, and reliance upon, the zoning ordinance then in effect, only to face time and again attempts by others to change the zoning plan and character of the neighborhood through the issuance of use permits and the granting of variances to the zoning ordinance." at 257.
i. General/Reliance/Health and welfare. "Aside from the individual property owner's interest in relying on the zoning regulation of the area, there is a legitimate public interest involved in density zoning which affects the 'health, safety, morals and general welfare of the community." at 257.
j. Profit. "'It is not per se a sufficient
reason for a variation that the nonconforming use is more profitable to
the landowner. (citations omitted) The converse of this would emasculate
the principle of zoning, for invidious distinctions are inadmissible.'"
11. Eagle Thrifty v. Hunter Lake P.T.A., 85 Nev. 162, 451 P.2d 713 (1969). [Opinion on Rehearing]
a. General/Legislative. "Zoning is a legislative matter [McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961)], and the legislature has acted." at 164.
b. General. Although some may believe that
the procedural provisions of the city code do not afford sufficient protection
to affected property owners near the area of the proposed zone change in
the circumstances presented by this record, any correction must come from
the City Council. It is not our business to write a new city ordinance."
12. Pederson v. County of Ormsby, 86 Nev. 895, 478 P.2d 152 (1970).
a. Grandfather. "There being no actual use
of the land as a commercial gravel pit the 'grandfather' principles cannot
be applied to Pederson in this instance." at 897. "The trial court fond
specifically that he did not operate a commercial gravel pit on this property
at that time, that the excavation for the construction of the house and
outbuildings was for the sole purposes of the house and was not commercial
in nature." at 896.
13. Western Land Co. v. Truskolaski, 88 Nev. 200, 495 P.2d 624 (1972).
a. Restrictive covenants. "A zoning ordinance
cannot override privately-placed restrictions, and a trial court cannot
be compelled to invalidate restrictive covenants merely because of a zoning
change." at 206.
14. State ex rel. Johns v. Gragson, 89 Nev. 478, 515 P.2d 65 (1973).
a. Record. "No reasons for the revocation of the permit were stated, and none appear in the record before this court." at 481.
b. Record. "The only 'evidence' supporting revocation of the permit consisted of opinions voiced by the Commissioners. Even if such statements were construed as official positions of the Commission, they do not constitute valid grounds for denial under the ordinance, absent supporting proof." at 482.
c. Scope of review/Record/Substitute judgment. "The review of administrative decisions by the district court and this court is limited to the record made before the administrative tribunal, and in the absence of a showing that the agency acted fraudulently or arbitrarily, the district court may not substitute its opinion for that of the city commissioners. City of Reno v. Folsom, 86 Nev. 39, 464 P.2d 454 (1970); Urban Renewal Agency v. Iacometti, 79 Nev. 113, 379 P.2d // 466 (1963); McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961); City of Henderson v. Henderson Auto Wrecking, Inc., supra; Nevada Tax Comm'n v. Hicks, 73 Nev. 115, 310 P.2d 852 (1957)." at 482-483.
d. Scope of review/Record. "The record in
the instant case is void of any evidence to support the ruling revoking
Johns' home occupation permit. In such a case, therefore, where the decision
of an administrative body is arbitrary, oppressive, or accompanied by manifest
abuse, this court will not hesitate to interfere. City of Henderson
v. Henderson Auto Wrecking, Inc., supra; Nevada Tax Comm'n v. Hicks,
73 Nev. 115, 310 P.2d 852 (1957)." at 483.
15. Kings Castle v. Washoe Co. Bd. Comm'rs, 88 Nev. 557, 502 P.2d 103 (1972).
a. Pending/Vested rights. "In the facts of
this case, we believe the district court correctly held that appellants
had no vested right to application of sperseded zoning regulations [not
yet formally abrogated], and that the ordinances in effect when the court
ruled [pending at time of denial of permit by TRPA] were controlling."
16. Forman v. Eagle Thrifty Drugs & Markets, 89 Nev. 533, 516 P.2d 1234 (1973).
a. Amendments/Ordinances. In the City of Reno zoning changes are effected by city ordinance enacted by the Reno City Council. A municipal ordinance may be either legislative or administrative." at 537.
b. Ordinances/Referendum. "'An ordinance originating or enacting a permanent law or laying down a rule of conduct or course of policy for the guidance of the citizens or their officers and agents is purely legislative in character and referable, but an ordinance which simply puts into execution previously-declared policies, or previously-enacted laws, is administrative or executive in character, and not referable.'" at 537.
c. Referendum. "We think that whether or not the citizens of a state wish to embark upon a policy of zoning for the purpose of regulating and restricting the construction and use of buildings within fixed areas is a legislative matter subject to referendum. But when, as in the present case, such policy has been determined and the changing of such areas, or the granting of exceptions // has been committed to the planning commission and the city council in order to secure the uniformity necessary to the accomplishment of the purposes of the comprehensive zoning ordinance, such action is administrative and not referable." at 537-538.
d. Police power. "The enactment and enforcement of zoning laws and ordinances are valid exercises of the police power which is inherent in the state and which can be delegated to municipal corporations. The power to zone must be found in the police power insofar as in its exercise it imposes use restrictions on property without payment of compensation." at 538.
e. Constitution/Due process/Amendment. "The law requires that zoning ordinances observe state and federal constitutional provisions and requirements including that of due process. State v. Hill, 59 Nev. 231, 90 P.2d 217 (1939). The governing body of a city has the power to change // land use classifications, but no such regulation may become effective until after notice and public hearing at which interested parties and citizens shall have an opportunity to be heard." at 538-9
f. Constitution/Due process/Quasi judicial. "When a statute requires notice and hearing as to the possible effect of a zoning law upon property rights the action becomes quasi judicial in character, and the statutory notice and hearing then becomes (sic) necessary in order to satisfy the requirements of due process and may not be dispensed with." at 539.
g. Enabling act. "Moreover, a zoning ordinance
must be pursuant to, and in substantial conformity with, the zoning or
enabling act authorizing it. (citation omitted) .... Thus, when appellants
seek to initiate rezoning within the city without complying with the zoning
statute, they are, in effect, attacking collaterally the very statute under
which they claim the power to zone." .... [T]he statute guides the zoning
process of the cities and directs the means by which it is to be accomplished."
17. Lamb v. Mirin, 90 Nev. 329, 526 P.2d 80 (1974). [not a zoning case]
a. Preemption. "Whenever a legislature sees fit to adopt a general scheme for the regulation of a particular subject, local control over the same subject, through legislation, ceases. In determining whether the legislature intended to occupy a particular field to the exclusion of all local regulation, the Court may look to the whole purpose and scope of the legislative scheme. Ronnow v. City of Las Vegas, 57 Nev. 332, 65 P.2d 133 (1937)." at 332.
b. Preemption. "That which is allowed by the general laws of a state cannot be prohibited by local ordinance, without an express grant on the part of the legislature." at 333.
c. Supremacy. "The plenary authority of a
legislature operates to restrict and limit the exercise of all municipal
powers, whether public or governmental, proprietary or private." at 333.
18. Board of Comm'rs v. Dayton Dev. Co., 91 Nev. 71, 530 P.2d 1187 (1975).
a. General/Scope of review. "Zoning is a legislative mater and the legislature has acted. Eagle Thrifty v. Hunter Lake P.T.A., 85 Nev. 162, 451 P.2d 713 (1969).... As a general proposition, the zoning power should not be subjected to judicial interference unless clearly necessary. Coronet Homes, Inc. v. McKenzie, 84 Nev. 250, 439 P.2d 219 (1968)." at 75.
b. Mandamus/Discretion. "The extraordinary
remedy of mandamus is available to compel the performance of an act which
the law especially enjoins as a duty resulting from office. (citations
omitted) That writ also is available to correct a manifest abuse of discretion
by the governing body, and occasionally has been so utilized in zoning
cases. State ex rel. Johns v. Gragson, 89 Nev. 478, 515 P.2d 65
(1973); Henderson v. Henderson Auto, 77 Nev. 118, 359 P.2d 743 (1961)."
19. Williams v. Griffin, 91 Nev. 743, 542 P.2d 732 (1975).
a. Pending. "Although there exists a minority
of authority to the contrary, administrative agencies may refuse to issue
permits which conflict with pending zoning ordinances not yet in effect.
If the aggrieved party had actual or constructive knowledge of the pending
zoning change and there was in fact a new zoning ordinance pending that
was likely to become effective in a relatively short period of time, the
denial of permits authorizing a use not conforming to the pending zoning
scheme is proper." at 745.
20. Penrose v. O'Hara, 92 Nev. 685, 557 P.2d 276 (1976).
a. Nonconforming use. "(A) nonconforming use
cannot be justified merely because it might be temporary." at 686.
21. League to Save Lake Tahoe v. Tahoe R.P.A., 93 Nev. 270, 563 P.2d 582 (1977).
a. Final action. When failure to take "final
action" results "in an automatic affirmance of the decision of the local
permit issuing authority," the court will construe "such automatic affirmance
to be the equivalent of "final action" within the meaning of NRS 278.027.
22. Lied v. County of Clark, 94 Nev. 275, 579 P.2d 171 (1978).
a. Vacation. "The standard to be used by a
governing body in determining the propriety of the vacation of a street
is whether the public would be materially injured by such vacation. NRS
278.480(4)." at 279.
23. County of Clark v. Atlantic Seafoods, 96 Nev. 608, 615 P.2d 233 (1980).
a. Mandamus/Discretion. "Mandamus is an appropriate remedy when discretion is exercised arbitrarily or capriciously. Kochendorfer, 93 Nev. at 422, 566 P.2d at 1133; Gragson, 90 Nev. at 133, 520 P.2d at 617; see NRS 34.160." at 611.
b. Record/Mandamus/Discretion. "Because the
board capriciously ignored the standards and criteria set forth in §
8.20.010(b), the district judge did not err by issuing the permanent writ
of mandate." at 611.
24. Clark Co. Bd. Comm'rs v. Taggart Constr., 96 Nev. 732, 615 P.2d 965 (1980).
a. Scope of review/Trial de novo/Variance. Court erred by conducting a trial de novo. "Its province was confined to a review of the record of evidence presented to the Clark County Board of Commissioners and the Planning Department, with its primary focus on the variance itself." at 734.
b. Variance. "A variance is designed to authorize a specific use of property in a manner otherwise proscribed. Because a variance affords relief from the literal enforcement of a zoning ordinance, it will be strictly construed to limit relief to the minimum variance which is sufficient to relieve the hardship. (citations omitted) It should not be construed to include a generic class of uses, or a list of uses." at 735.
c. General/Variance/Use permit/Economic advantage.
"Zoning is an instrument by which governmental bodies can more effectively
accommodate the needs and demands of our growing society. Coronet Homes
v. McKenzie, 84 Nev. 250, 255, 439 P.2d 219, 223 (1968). Nevertheless,
the zoning restrictions must be balanced against the right of a property
owner to develop his property to his own economic advantage. It is for
this reason that zoning plans, no matter how sophisticated they may be,
generally contain, as here, some procedures for granting variances, amendments,
special use permits, or exemptions for specific uses of specific parcels
of property." at 736.
25. Ferris v. City of Las Vegas, 96 Nev. 912, 620 P.2d 864 (1980).
a. Commercial-Residential. "The use of property in a residential zone to gain vehicular access to business property is a commercial use in violation of zoning laws." at 914.
b. Nonconforming use. "A nonconforming use is a use which does not conform to the restriction governing a zoned area, but which lawfully existed at the time the ordinance went into effect." at 915.
c. Nonconforming use. "Generally, zoning ordinances do not limit the right of a landowner to continue a nonconforming use in existence at the time of the adoption of the ordinance. Pederson v. County of Ormsby, 86 Nev. 895, 478 P.2d 152 (1907); State ex rel. Davie v. Coleman, 67 Nev. 636, 224 P.2d 309 (1958)." at 915.
d. Nonconforming use. "A landowner acquires no advantage from a nonconforming use where it appears that such use was unlawful at the time the zoning regulation took effect." at 915.
e. Injunction. "An injunction is a proper
remedy where there is a zoning violation. L.V.C.C. 11-1-26(D); Smith
v. City of Las Vegas, 80 Nev. 220, 391 P.2d 505 (1964)." at 915.
26. Board Clark Co. Comm'rs v. Excite Corp., 98 Nev. 153, 643 P.2d 1209 (1982).
a. Nonconforming use. "As we have previously
held, unequivocal intent to use the property in a particular way cannot
substitute for actual use at the time a zoning ordinance is enacted, so
as to establish a valid nonconforming use. Pederson v. County of Ormsby,
86 Nev. 895, 478 P.2d 152 (1970)." at 156.
27. Board of Co. Comm'rs v. C.A.G. Inc., 98 Nev. 497, 654 P.2d 531 (1982).
a. Estoppel/Reliance. "Given the circumstances of this case, we reject the notion that the County's [mistaken] issuance of the business license and the health permit estops it from enforcing its zoning regulations against Mad Dogs [despite significant expenditures in reliance]. Where a public right and the protection of the public are involved, the doctrine of estoppel is to be invoked only in rare and unusual circumstances, and should not apply where it would defeat a policy adopted to protect the public." (citations omitted) In this case, it would be unfair and inequitable to apply estoppel to protect Mad Dogs, because to do so could harm nearby residents who were powerless to prevent the County's illegal issuance of the permits to Mad Dogs. On the other hand, Mad Dogs had the opportunity to inform itself of the County's zoning regulations and the need to obtain a conditional use permit." at 500.
b. Discretion/Neighbors/Use permits. "Here,
particularly in light of the complaints from neighbors regarding Mad Dogs'
operation, there is no basis for characterizing the County's policy of
granting conditional use permits on a temporary basis as fraudulent or
arbitrary, even if the policy may lead to future litigation and generate
uncertainty for Mad Dogs regarding possible future plans for its restaurant."
28. L & T Corp. v. City of Henderson, 98 Nev. 501, 654 P.2d 1015 (1982).
a. Vacation. "We have previously held that '[t]he standard to be used by a governing body in determining the propriety of the vacation of a street is whether the public would be materially injured by such vacation. NRS 278.480(4).' Lied v. County of Clark, 94 Nev. 275, 279, 579 P.2d 171 (1978)." at 503.
b. Vacation. "A street vacation to private interest is not sufficient, per se, to invalidate the governmental action. The public welfare may be served by placing street lands in the hands of private individuals. (citations omitted). The record reflects a basis for concluding that in spite of Eldorado's ownership of the vacated portion of the street, the public will also be benefited. The parking garage should alleviate Henderson's parking problems while the hotel has the potential of stimulating the city's economy." at 503.
c. Vacation/Standing. "Lied stands
for the general proposition that a property owner whose property does not
abut upon the portion of the street to be vacated, does not have standing
to challenge a procedurally correct vacation. However, an exception to
the general rule is that any person, whether or not a landowner, has standing
to challenge and obtain injunctive relief against a proposed vacation when
he or she has suffered special or peculiar damage differing in kind from
the general public. See, Teacher Bldg. Co. v. City of Las Vegas,
68 Nev. 307, 232 P.2d 119 (1951), and Blanding v. City of Las Vegas,
52 Nev. 52, 280 P. 644 (1929). Here, appellants have not shown such special
or peculiar injury. The claim of special injury due to interference with
property access and a diminution in property value through loss of business
is not supported by case law. The vacation of a street requiring travel
by a more circuitous route is not a special injury as long as the landowner
still retains an alternate mode of egress from or ingress to his or her
land, even if less convenient. Blanding v. City of Las Vegas, id."
29. Bd. of County Comm'rs v. CMC of Nevada, 99 Nev. 739, 670 P.2d 102 (1983).
a. Aesthetics. "The Commission could hardly function in effective promotion of the recited purposes of the zoning title if it were restricted solely to considerations of aesthetics." at 743.
b. Statutory construction. "Courts must construe statutes and ordinances to give meaning to all of their parts and language. State ex rel. List v. AAA Auto Leasing, 93 Nev. 483, 568 P.2d 1230 (1977), Nevada State Personnel Division v. Hashins, 90 Nev. 425, 529 P.2d 795 (1974). The court should read each sentence, phrase, and word to render it meaningful within the context of the purpose of the legislation. See State Gen. Obligation Bond v. Koontz, 84 Nev. 130, 437 P.2d 72 (1968). A reading of legislation which would render any part thereof redundant or meaningless, where that part may be given a separate substantive interpretation, should be avoided." at 744.
c. Statutory construction. "When a former statute is amended, or a doubtful interpretation is rendered certain by persuasive evidence of the purpose and intent of the legislature in passing the former (unamended) statute. See Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975); Sheriff v. Smith, 91 Nev. 729, 542 P.2d 440 (1975)." at 745.
d. Vested rights. "Although certain inroads are appearing in the general rule that vested rights against changes in the zoning laws exist only after the issuance of a building permit and the commencement of construction, such inroads do not confer vested rights unless zoning or use approvals are not subject to further governmental discretionary actions affecting project commencement." at 747.
e. Architectural review. Though somewhat duplicative, "Architectural supervision may act as an added precaution or 'failsafe' system to assure proper deference to the general welfare purposes of title 29." at 746.
f. Architectural review/Use permit/Variance.
The Commission and the Board may "disapprove under architectural supervision
a project which both bodies approved at the conditional use permit and
variance hearings." at 746.
30. City Council, Reno v. Travelers Hotel, 100 Nev. 436, 683 P.2d 960 (1984).
a. Substantial evidence. "This court has held that the 'substantial evidence' requirement supporting such a [special use permit] decision is not met by statements of counsel for interested parties, Henderson v. Henderson Auto, 77 Nev. 118, 359 P.2d 743 (1961), or opinions of council members, unsupported by proof. State ex rel. Johns v. Gragson, 89 Nev. 478, 515 P.2d 65 (1973). at 439.
b. Scope of review/Substantial evidence/Record. "Like the district court, we are limited to the record made before the City Council in our review of the council's decision. State ex rel. Johns v. Gragson, 89 Nev. at 482, 515 P.2d at 68; // McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961). In the instant case the City Council gave no reasons for its decision, and there is no substantial evidence in the record to support the denial of Travelers' special use permit." at 439-440.
c. Substantial evidence/Protests. "The City
Council's argument that the lay witness' remarks concerning the location
of the hotel-casino near a high school constituted a basis for its decision
is considerably weakened by the council's approval, since the decision
below, of two hotel-casino operations that are the same distance from the
school." at 439, n. 4.
31. City of Reno v. Nevada First Thrift, 100 Nev. 483, 686 P.2d 231 (1984).
a. Vested rights/Equitable estoppel/Reliance/Discretion/Retroactive. Despite negligence in enforcing and interpreting zoning and building codes: "It would be an abuse of discretion in the instant case and contrary to principles of equitable estoppel to retroactively enforce reinterpreted zoning laws or to assert previously waived building code infractions after funds had been loaned and construction nearly completed. We hold that when a building permit has been issued, vested rights against changes in zoning laws exist after the permittee has incurred considerable expense in reliance thereupon." at 487.
b. Mandamus/Discretion. "We have previously held, moreover, that such abuse is properly corrected by a writ of mandamus." at 487.
c. Scope of review. "While we have said that
courts are not super boards of adjustment, we have nevertheless recognized
that they can properly act as judicial overseers, 'drawing the limits beyond
which local regulation may not go.' Coronet Homes, Inc. v. McKenzie,
84 Nev. 250, 256, 439 P.2d 219, 223 (1968). More importantly, we have held
that 'where the decision of an administrative body is arbitrary, oppressive,
or accompanied by manifest abuse, this court will not hesitate to interfere.'
State ex rel. Johns v. Gragson, 89 Nev. 478, 483, 515 P.2d 65, 68
(1973)." at 488.
32. City Council v. Irvine, 102 Nev. 276, 721 P.2d 371 (1986).
a. Record/Discretion. "These cases [Henderson; Atlantic Seafoods] do not stand for the proposition that the board must 'explain' its decision or even that it must make formal findings or conclusions. The decision of the trial court in these matters must, rather, be based upon the applicant's ability to establish in some manner that the council has abused its discretion. This may be done, as it was in Seafoods and Henderson by showing that the municipal record discloses no sufficient reason to support the denial." at 280.
b. Record. "This court upheld the trial court in Travelers, noting that the mere statements of interested parties and their counsel and the opinions of counsel members did not provide a proper reason for the decision." at 281.
c. Record. "Still another discrete and singly
supportable reason for denial which can be taken from the record is that
the city could have relied on the police department's notation that the
cabaret was only one-half block from residential buildings." at 282.
33. State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 729 P.2d 497 (1986) [Not a zoning case]
a. Substantial evidence/Record/Substitute judgment. "When reviewing an administrative board's actions, this court, like the district court, is limited to the record below and to whether the board acted arbitrarily or capriciously. (citation omitted) The question thus becomes whether the board's decision was based on substantial evidence; if based on substantial evidence neither this court, nor // the district court, may substitute its judgment for the administrator's determination." at 607-608.
b. Substantial evidence. "Substantial evidence
has been defined as that which 'a reasonable mind might accept as adequate
to support a conclusion.' Richardson v. Perales, 402 U.S. 389 (1971)."
34. Travelers Hotel v. City of Reno, 103 Nev. 343, 741 P.2d 1353 (1987).
a. Discretion/Use permit/Economic advantage. "We conclude that the trial court correctly determined that the City's action in considering and denying the special use permit was a discretionary function" and could not be liable under a tort theory of interference with prospective economic advantage." at 345.
b. Use permit. "Travelers' proposed development constituted a 'major project' and thus required the issuance of a special use permit." at 346.
c. Discretion/Use permit. "The City's determination whether to issue a special use permit falls within the discretionary function exception of NRS 41.032(2). The discretionary nature of the City's action also means that the City was immune from an award of attorney's fees against it." at 346.
d. Damages/Final action. "A cause of action
for damages accrues under NRS 278.0233 upon the final action of a state
or local agency which places limitations on property in excess of that
authorized by law." at 346.
35. Flick Theater v. City of Las Vegas, 104 Nev. 87, 752 P.2d 235 (1988).
a. Preemption. "In Lamb v. Mirin, 90 Nev. 329, 526 P.2d 80 (1974), we noted that in determining whether the // legislature intended to occupy a particular field to the exclusion of all local regulation the courts should look to the whole purpose and scope of the legislative scheme. 'That which is allowed by the general laws of a state cannot be prohibited by local ordinance, without an express grant on the part of the legislature.' Lamb, 90 Nev. at 333, 526 P.2d at 82. at 89-90.
b. Sexually oriented business/Preemption/Health and general welfare. "The state has delegated to the city express authority to regulate the location of sexually oriented businesses. General authority to regulate the location and use of buildings and structures, in order to promote the health and general welfare of the community, is granted under NRS 278.020 and NRS 278.250. These state statutes do not constitute a comprehensive statutory scheme which purports to regulate the location of sexually oriented businesses throughout the state and do not indicate any attempt by the state to occupy the field. To the contrary, the intent of the state, as clearly manifested in the above statutes, is to vest in local government the authority to regulate such matters as they see fit. These ordinances are not, as claimed by Flick, an excessive exercise of municipal legislative power that renders the ordinances void under state law." at 90.
c. Sexually oriented business. "[T]he city
had the authority to enact ordinances regulating the location of sexually
oriented businesses in proximity to schools and churches." at 90.
36. Nova Horizon v. City Council, Reno, 105 Nev. 92, 769 P.2d 721 (1989).
a. Substantial evidence. Approves McKenzie v. Shelly, 77 Nev. 237, 240-242, 362 P.2d 268, 269-70 (1961), re substantial evidence.
b. General/Economic advantage. "Numerous cases support the premise that zoning boards may not unreasonably or arbitrarily deprive property owners of legitimate, advantageous land uses." at 95.
c. Substantial evidence/Substantial relationship/Health and general welfare. "The Kohler court [Town of Vienna Council v. Kohler, 244 S.E.2d 542, 548 (1978)] concluded that 'a denial of a rezoning request will not be sustained if under all the facts of the particular case, the denial is unreasonable, or is discriminatory, or is without substantial relationship to the public health, safety, morals and general welfare.'" at 95.
d. Master Plan/Presumption. "While such a strict view of the invariable application of a master plan on zoning matters may lend a high degree of predictability to prospective land uses and facilitate usage planning by land owners, we do not perceive the legislative intent to be so confining and inflexible. We therefore choose to view a master plan as a standard that commands deference and a presumption of applicability, rather than a legislative straight-jacket from which no leave may be taken." at 96.
e. Master Plan. "Having determined that master plans are to be accorded substantial compliance under Nevada's statutory scheme, and recog // nizing anew the general reluctance to judicially intervene in zoning determinations absent clear necessity...." at 96-97.
f. Substantial evidence/Master Plan. "It is clear on the record that no evidentiary basis exists for the Council's denial of appellants' zone change request. It is equally clear that no deference, let alone a presumptive applicability, was accorded Reno's master plan by the Council. In one instance, an expression of deference to a campaign promise was the stated basis for what was tantamount to a disregard for the master plan. The other expression offered as a specific basis for rejecting appellants' application was a pledge, presumably to constituents, to seek diversification in favor of higher employee wages. The latter point was equally untenable as a basis for zoning denial." at 97.
g. Record. "The council simply did not effectively address the effect of the impact of such a substantial project on the City of Reno. While it may be argued with considerable cogency from the record that appellants justified an approval of their entire application, and that it is unfair to subject them to further proceedings, we nevertheless conclude that it would be unwise and inappropriate for this court to accommodate an approval by forfeiture. at 97.
h. Record/Rehearing. "(W)e will assume that, upon rehearing, the Council will exercise its judgment fairly and in accordance with the merits as reflected by the evidence and deliberations of record." at 97.
i. Record/Substantial evidence/Health and welfare/Discretion.
"We are simply unable to discern from the record that the Council adequately
focused its attention on the merits of the project and its total impact
on the community. Considerations of public health, safety and welfare demand
both such a focused attention and the exercise of a fair and enlightened
discretion by the Council based upon substantial evidence." at 98.
37. Nevada Contractors v. Washoe County, 106 Nev. 310, 792 P.2d 31 (1990).
a. Discretion/Use permit/Substantial evidence. "The grant or denial of a special use permit is a discretionary act. City Council, Reno v. Travelers Hotel, 100 Nev. 436, 439, 683 P.2d 960, 961-962 (1984), quoting Henderson v. Henderson Auto, 77 Nev. 118, 122, 359 P.2d 743, 745 (1961). If this discretionary act is supported by substantial evidence, there is no abuse of that discretion. City Council, Reno, 100 Nev. at 439, 683 P.2d at 961-962. Without an abuse of discretion, the grant or denial of a special use permit shall not be disturbed. Id. at 440, 683 P.2d at 962." at 313.
b. Scope of review/Discretion. "Finally, we
note it is not the business of courts to decide zoning issues. Coronet
Homes, Inc. v. McKenzie, 84 Nev. 250, 256, 439 P.2d 219, 223 (1968).
Because of the Board's particular expertise in zoning, courts must defer
to and not interfere with the Board's discretion if this discretion is
not abused." at 314.
38. Clark Co. Liquor & Gaming v. Simon & Tucker, 106 Nev. 96, 787 P.2d 782 (1990).
a. Substantial evidence/Protest. Distinguishes
City Council, Reno v. Travelers Hotel, on ground that the lay evidence
- that the traffic of a gaming establishment would be dangerous to children
in the area - was substantial evidence in support of denial of a county
liquor and gaming license.
39. Bing Construction v. Douglas County, 107 Nev. 262, 810 P.2d 768 (1991).
a. Revocation/Discretion/Use permit. "We agree with the trial court that whether the zoning change is a benefit to the County is within the County's discretion, and that the County may revoke Bing's special use permit to make the zoning change." at 265.
b. Due process/Use permit. "Before the granting of a special use permit, NRS 278.315 requires a board of commissioners to hold a hearing. This statute also provides that the applicant and each owner of property within 300 feet must receive notice of the hearing by mail. Therefore, the county must personally notify interested parties before granting a special use permit." at 265.
c. Revocation/Use permit. "NRS 278.375 states that a county may reserve for itself the right to modify or reverse permits, but provides no further procedural requirements. Hence, the legislature left to each individual county the decisioin how to proceed when revoking permits." at 265.
d. Revocation/Due process/Use permit/Vested rights. "However, we are not convinced that just because the legislature let individual counties determine their own procedure to alter zoning // in derogation of a special use permit, counties are free to make changes without personally notifying the citizens who will be directly affected. Due process concerns require that a property owner must be notified when its rights are changed, even if those rights are not vested. at 265-266.
e. Due process. "Other states have held that upon a zoning change, the failure to provide personal notice to an interested party is a violation of due process." at 266.
f. Revocation/Use permit/Due process. "[W]e conclude that a county may not choose to revoke special uses without a valid reason, and therefore must provide personal notice and a hearing to all parties who will be directly affected by the zoning change or permit revocation." at 266.
g. Due Process. "Notice by publication could
be sufficient to those who are indirectly affected...." at 266, n. 4.
40. Tighe v. Von Goerken, 108 Nev. 440, 833 P.2d 1135 (1992). [Liquor licensing]
a. Scope of review/Discretion. "We have settled the deferential standard of review accorded to actions of municipalities in prior decisions of this court. Thus, in Urban Renewal Agency v. Iacometti, 79 Nev. 113, 118, 379 P.2d 466, 468 (1963), we held that 'a trial court should sustain discretionary action of a governmental body, absent an abuse thereof, to the same extent that an appellate court upholds the discretionary action of a trial court.' We also held in Clark County Liquor & Gaming v. Simon & Tucker, 106 Nev. 96, 97, 787 P.2d 782, 783 (1990), that 'the court may interfere with an agency's decision only when there is a manifest abuse of discretion.' In Simon & Tucker, we determined that in balancing private and public interests, a governmental agency must consider the public interest paramount. Id. Finally, in characterizing the type of discretionary abuse inviting judicial intervention, we observed that 'the essence of the abuse of discretion, of the arbitrariness or capriciousness of govern // mental action in denying a license application, is most often found in an apparent absence of any grounds or reasons for the decision. 'We did it just because we did it.'' City Council v. Irvine, 102 Nev. 277, 280, 721 P.2d 37 (sic), 372-73 (1986)." at 442-443.
b. General. "(I)t is clear that compatible zoning does not, ipso facto, divest a municipal government of the right to deny certain uses based upon considerations of public interest. See Nevada Contractors v. Washoe County, 106 Nev. 310, 792 P.2d 31 (1990)." at 443.
c. Rehearing/Record. "Despite our conclusion
that the record does not evince a clearly arbitrary and capricious decision
by the Council, it is nevertheless apparent that the Council acted without
the benefit of a reasonably developed evidentiary or factual presentation.
We are convinced that when private property is denied the uses for which
it is zoned, any such denial must be based upon meaningful, reasonably
complete factual information.
Although we unable to conclude that the Council's decision represents a basis for judicial intervention in the form of mandamus, we do conclude that the evidentiary basis for the Council's action was inadequate. Therefore, a new public hearing will be necessary in order for the Council to fully consider factual information pertaining to the impact or effect of Von Goerken's application for a tavern liquor license. Van Goerken is to be given lawful notice of the meeting to allow him sufficient opportunity to gather evidence in support of his application." at 444.
41. City of Reno v. Estate of Wells, 110 Nev. 1218, 885 P.2d 545 (1994).
a. Vacation/Abandonment. "NRS 278.480(4) provides that a governing body may abandon property if it 'is satisfied that the public will not be materially injured' by the proposed abandonment. We have previously rejected the argument that there is a 'public purpose' component to the abandonment statute. L & T Corp. v. City of Henderson, 98 Nev. 501, 503, 654 P.2d 1015, 1016 (1982). We therefore conclude that the district court erred when it focused on the benefits of abandonment, rather than any 'material injury' the abandonment may cause. The lower court did mention, without discussion, that it found a 'public detriment' associated with the abandonment. However, the court's unsupported conclusory remark does not constitute a well-reasoned finding of 'material injury to the public...'" at 1221.
b. Substantial evidence/Discretion. "In Tighe v. Von Goerken, 108 Nev. 440, 833 P.2d 1135 (1992), we noted that "'the essence of the abuse of discretion, of the arbitrariness or capriciousness of government action...is most often found in an apparent absence of any grounds or reasons for the decision,'" or in other words, "'[w]e did it just because we did it.'" Id. at 442-43, 833 P.2d at 1136 (quoting City Council v. Irvine, 102 Nev. 277, 280, 721 P.2d 371, 372-73 (1996)). Additionally, we have previously accepted the definitions of arbitrary and capricious, respectively, as 'baseless' or 'despotic' and "'a sudden turn of mind without apparent motive; a freak, whim, mere fancy.'" City Council v. Irvine, 102 Nev. 277, 278-79, 721 P.2d 371, 372 (1986) (quoting The Oxford Universal Dictionary). at 1222.
c. Substantial evidence/Abandonment. "'Substantial evidence' is that which 'a reasonable mind might accept as adequate to support a conclusion.' See, e.g., Ruggles v. Public Service Comm'n, 109 Nev. 36, 40, 846 P.2d 299, 302 (1993). Substantial evidence need not be voluminous; and in this case, it may be inferentially shown by the lack of evidence that abandonment of the right-of-way would impose a material injury upon the public." at 1222.
d. Abandonment/Substantial evidence. "In sum,
reasonable minds may properly conclude that the abandonment does not result
in a material public injury and therefore, the // Council's decision is
supported by substantial evidence." at 1222-1223.
42. City of Las Vegas v. 1017 S. Main Corp., 110 Nev. 1227, 885 P.2d 552 (1994).
a. Constitution/Vague. "An ordinance is unconstitutionally vague if it either forbids or requires the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess at its meaning and differ as to its application. Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). Such an ordinance is 'void for vagueness' and inconsistent with due process of law. Additionally, an ordinance may be void for vagueness if its imprecision is likely to encourage arbitrary and discriminatory enforcement. Forsyth County, Ga. v. Nationalist Movement, ..... U.S. ....., ....., 112 S.Ct. 2395, 2403 (1992) (stating that the First Amendment prohibits the vesting of unbridled discretion in government officials); Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972); Eaves v. Board of Clark County Comm'rs, 96 Nev. 921, 924, 620 P.2d 1248, 1250 (1980)." at 1231.
b. Constitution/Vague. "The word 'altered' conveys a clear meaning when standing on its own, and when coupled with other words of limitation, as it is here, its meaning is not rationally susceptible to an attack on grounds of vagueness." at 1234.
c. Constitution/Equal protection. "(A) facially
valid ordinance may be the vehicle for unequal protection of the law when
applied in an arbitrary or discriminatory manner. Yick Wo v. Hopkins,
118 U.S. 356, 373-74 (1886). More particularly, we have noted that '[e]qual
protection of the law has long been recognized to mean that no class of
persons shall be denied the same protection of the law which is enjoyed
by other classes in like circumstances.' Allen v. State,
100 Nev. 130, 135, 676 P.2d 792, 795 (1984) (emphasis added)." at 1234-1235.
43. City of Reno v. Lars Andersen and Assocs., 111 Nev. 522, 894 P.2d 984 (1995).
a. Discretion/Substantial evidence/Use permit. "The approval or denial of a special use permit is a discretionary act. Nevada Contractors v. Washoe County, 106 Nev. 310, 312, 792 P.2d 31, 33 (1990). If the act is supported by substantial evidence, the courts will not disturb it." at 525.
b. Rehearing. Decides that the facts are more like Travelers Hotel than Nova; the latter remanded the request for a special use permit for rehearing. In present case, "the Council was able to focus on the project itself" and "the district court had a sufficient record upon which to base its order." at 527.
c. Rehearing. "The City argues that the district
court's order improperly precluded the Council from receiving further needed
evidence and exercising its lawful discretion in regard to the items at
issue. However, the City's arguments are undermined by its own Council's
actions in this case. First, if the Council had not yet received sufficient
evidence on these items, it should have // deferred voting on them on September
28, 1993. Instead, it voted to deny them. Second, the City argues that
the district court's order to grant the permit for the project requires
that the Council be allowed to reconsider the other items. Again, however,
on September 28, 1993, after deferring a decision on the permit for the
project, the Council did not perceive any need to delay consideration of
those items and went ahead and voted to deny the other permits and the
variances. In light of the Council's earlier actions, it is inconsistent
and unconvincing for the City to argue that the district court's order
changed everything and that more evidence and deliberation are necessary."
at 528-529, n.3.
44. City of Las Vegas v. Laughlin, 111 Nev. 557, 893 P.d 383 (1995).
a. Scope of review/Substantial evidence/Discretion/Use permit/Record. "Like the district court, this court is limited to the record made before the City in reviewing the City's decision. See State ex. rel. Johns v. Gragson, 89 Nev. 478, 482, 515 P.2d 65, 68 (1973). The grant or denial of a request for a special use permit is a discretionary act. City Council, Reno v. Travelers Hotel, 100 Nev. 436, 439, 683 P.2d 960, 961-62 (1984). If this discretionary act is supported by substantial evidence, there is no abuse of discretion. Id. Substantial evidence is that which ''a reasonable mind might accept as adequate to support a conclusion.'' State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986) (quoting Richardson v. Perales, 402 U.S. 389 (1971))." at 558.
b. Protests/Discretion/Use permit. "In addition, the City's reliance on public testimony is not dispositive of the fact that the City abused its discretion. Although testimony from a few individuals that an area is overwhelmingly residential may not be enough to deny a request for a special use permit, see Tighe v. Von Goerken, 108 Nev. 440, 444, 833 P.2d 1135, 1137 (1992), the testimony here reflected the opinion of over 200 individuals. Therefore, because we conclude that the lay objections were substantial and specific, the case at bar may be distinguished from Travelers Hotel, 100 Nev. at 439, 683 P.2d at 961, in which this court found that one lay opinion that a proposed casino was too close to a high school was an insufficient ground for denial of a request for a special use permit. See Clark Co. Liquor & Gaming v. Simon & Tucker, 106 Nev. 96, 98, 787 P.2d 782, 783 (1990) (using the same reasoning to distinguish Travelers Hotel)." at 559.
c. Protests/Substantial evidence/Discretion/Use
permit. "We conclude that the concerns expressed by the public, specifically
those over increased traffic where children walk to school // and preserving
the residential nature of the neighborhood, establish a valid basis for
the denial of Laughlin's request for a special use permit. See Tighe,
108 Nev. at 443, 833 P.2d at 1137; Clark Co. Liquor & Gaming,
106 Nev. at 98, 787 P.2d at 783. Accordingly, we conclude that the City's
decision was based on substantial evidence and the City did not manifestly
abuse its discretion in denying Laughlin's request for a special use permit."
45. City of Reno v. Harris, 111 Nev. 672, 895 P.2d 663 (1995).
a. Standing. "Most courts considering the issue have held a municipality may be an aggrieved person within the meaning of statutes authorizing such a person to institute proceedings to review a decision of a board of adjustment. (citations omitted) // We agree with this authority and believe a municipality has a vested interest in requiring compliance with its land use decisions. Accordingly, the City of Reno was an aggrieved party and had standing to challenge the district court order." at 676-677.
b. Scope of review/Discretion/Special use permit/Record. "When a district court has reviewed a zoning decision without taking additional evidence and the decision is appealed to this court, the scope of review is usually limited to a determination of whether the agency or municipality which made the decision appealed from committed an abuse of discretion. See Nevada Contractors v. Washoe County, 106 Nev. 310, 313-14, 792 P.2d 31, 33 (1990). Review by this court is based upon the record made before the commission or council, City Council, Reno v. Travelers Hotel, 100 Nev. 436, 439, 683 P.2d 960, 962 (1984), and the grant or denial of a special use permit will not be disturbed absent an abuse of discretion." at 677.
c. Presumption/Scope of review. "No presumption of validity attaches to the decision of a district court that does not hear additional evidence in reviewing a zoning decision made by a municipality. (citation omitted) However, where the district court takes additional evidence, the scope of review is limited to a determination of whether the district court committed an abuse of discretion or made an error of law." at 677.
d. Record. "A court's consideration of matters outside the record, obtained by independent investigation, generally constitutes error. See, e.g., Westergard v. Barnes, 105 Nev. 830, 784 P.2d 944 (1989); (other citations omitted)." at 678.
e. Record. A district court judge's personal inspection of the neighborhood is not the equivalent of hearing additional evidence. at 677.
f. Discretion. "Once it is established that an area permits several uses, it is within the discretion and good judgment of the municipality to determine what specific use should be permitted." at 679.
g. Discretion/Substantial evidence. "The decision
as to specific uses within the transition zone was for the Reno Council
to make should only be disturbed if not supported by substantial evidence."
46. American West Dev. v. City of Henderson, 111 Nev. 804, 898 P.2d 110 (1995).
a. Vested rights/Reliance. "In order for rights in a proposed development project to vest, zoning or use approvals must not be subject to further governmental discretionary action affecting project commencement, and the developer must prove considerable reliance on the approvals granted. See City of Reno v. Nevada First Thrift, 100 Nev. 483, 487, 686 P.2d 231, 233 (1984); Bd. of County Comm'rs v. CMC of Nevada, 99 Nev. 739, 747, 670 P.2d 102, 107 (1983)." at 807.
b. Master plan. ""[T]his court held, pursuant to NRS 278.250(2), that 'municipal entities must adopt zoning regulations that are in substantial agreement with the master plan.' Nova Horizon v. City Council, Reno, 105 Nev. 92, 96, 769 P.2d 721, 723 (1989)." at 807.
c. Motivation/Master plan. "AWD's contention that Henderson did not dispute development // under the revised 1989 master plan until it came time to zone the 111-acre project raises justifiable suspicion that Henderson began to advocate the necessity of a new master plan only when zoning for the multi-family designated area became an issue." at 808-809.
d. Substantial evidence/Discretion/Error of law. "Because Henderson's denial of AWD's zoning application was based upon an error of law, the fact that the denial may have otherwise been supported by substantial evidence and unabused discretion, as the district court concluded, is not relevant." at 809.
e. Motivation/Master Plan/Supremacy. "We are
constrained to note that even if Henderson had expressly annulled all master
plans approved prior to the effective date of the new code, we would have
substantial doubts concerning the validity of such an attempted circumvention
of the policy dictates of NRS 278.250(2) as elucidated by this court in
Nova Horizon. As we there observed, Nevada's statutory scheme mandates
that municipalities adopt zoning regulations that are in substantial agreement
with approved master plans. Nova Horizon, 105 Nev. at 96, 769 P.2d
at 723. Assuming, therefore, that submission of a new master plan was intended
as part of the zoning process under the new code, as the district court
concluded, Henderson would still have been required to extend deference
to the 1989 master plan in the process of approving the new plan. The guarantees
afforded Nevada's developers by the Legislature may not be circumvented
by municipal ordinance." at 809, n. 3.
47. Serpa v. County of Washoe, 111 Nev. 1081, 901 P.2d 690 (1995).
a. Burden of proof/Health and general welfare. "Serpa bore the burden of proving that the Washoe County Board of County Commissioners' local planning and zoning enactments were invalid because they were unnecessary to public // health, safety, and welfare. Coronet Homes, Inc. v. McKenzie, 84 Nev. 250, 439 P.2d 219 (1968)." at 1084-1085.
b. Preemption/Master plan/Supremacy. "There
is no state law indicating that the ruling of the State Engineer preempts
a county or other governmental entity from enacting zoning laws that impose
limitations on water use that are more restrictive than those of the State
Engineer. .... County and local governments can place more burdensome restrictions
on local growth and development as long as those restrictions are consistent
with the relevant long-term comprehensive plans, Nevada law, and notions
of public welfare." at 1085.
48. Enterprise Citizens v. Clark Co. Comm'rs, 112 Nev.Adv.Op. 86, 918 P.2d 305 (1996).
a. Discretion/Substantial evidence/Variance/Special use permit. "The grant or denial of a variance, like a grant or denial of a request for a special use permit, is a discretionary act. See City of Las Vegas v. Laughlin, 111 Nev. 557, 558, 893 P.2d 383, 384 (1995). 'If this discretionary act is supported by substantial evidence, there is no abuse of discretion.' Id. Substantial evidence is evidence which 'a reasonable mind might accept as adequate to support a conclusion.' State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986)." at 3.
b. Scope of review/Record/Presumption/Substantial evidence. "The function of the district court is to ascertain as a matter of law whether there was substantial evidence before the Board which would sustain the Board's actions, and the function of this court at this time is the same as that of the district court. McKenzie v. Shelly, 77 Nev. 237, 242, 362 P.2d 268, 270 (1961). Like the district court, this court is limited to the record made before the Board in reviewing the Board's decision. Laughlin, 111 Nev. at 558, 893 P.2d at 384. Finally, 'no pre // sumption of validity attaches to the decision of a district court that does not hear additional evidence in reviewing a zoning decision made by a municipality.' City of Reno v. Harris, 111 Nev. 672, 677, 895 P.2d 663, 666 (1995)." at 3-4.
c. Burden/Variance/Hardship. "[R]espondents had the burden to prove that because of the narrowness, shallowness, topographic conditions or other exceptional conditions of the property, the strict application of the zoning regulations would result in 'exceptional practical difficulties to, or exceptional and undue hardships, upon, the owner of such property.'" at 4.
d. Hardship. "This court has not previously provided a definition of hardship, but many other courts and authorities have done so. See 101A C.J.S. Zoning & Land Planning § 242 (1979) (hardship exists where the application of the regulation to property greatly decreases or practically destroys its value for any permitted use, so as to deprive the owner of the land of all beneficial use of the land); Wells & Highway 21 Corp., 897 S.W.2d at 62 (hardship requires showing that land cannot yield reasonable return if used only for the purpose allowed in that zone); Concerned Residents v. Zoning Bd. of Ross Tp., 647 A.2d 966, 969 (Pa. Commw. Ct. 1994) (hardship requires showing that land is virtually useless as it is presently zoned); State v. Winnebago County, 540 N.W.2d 6, 9 (Wis.Ct.App. 1995) (hardship is a situation where, in the absence of a variance, no feasible use could be made of the land). While we are not compelled to use any of these definitions, we conclude that respondents have failed to prove, pursuant to any of these definitions, that the strict application of the zoning regulations would result in a hardship or difficulty which merited the granting of the variance." at 5.
e. Hardship/Burden/Variance. Unusual shape and excess dedications may, but "do not ipso facto create a difficulty or hardship which warrants a variance, and it is incumbent upon the property owner to prove what the hardship or difficulty is, i.e., the owner of the property would be deprived of all beneficial uses of the land if the land was used solely for the purpose allowed in that zone, the value of the property would decrease significantly if the property was used solely for the purpose allowed in that zone, a reasonable return on the property would not be realized unless the variance was granted, the land is virtually useless as zoned, or no feasible use could be made of the land as zoned." at 6.
f. Hardship/Application/Variance. "Respondents' answer [question no. 3 on the zoning variance application] stated only that the facility would meet health and safety standards and that traffic impacts would be mitigated. This answer was non-responsive and failed to provide any evidence that a hardship or difficulty existed which warranted the granting of the variance which would allow manufacturing in a residential district." at 7.
g. Record/Hardship/Variance. "Respondents never alleged or argued that they could not receive a reasonable return from the operation of the sand and gravel pit absent the variance permitting the batch plant." at 7.
h. Record/Hardship/Application/Variance. "Respondents never explained why the circumstances listed in the answers to questions one and two made the property unsuitable for its zoned residential use and therefore valueless without a variance...." at 7.
i. Record/Hardship/Staff/Use permit/Variance. Although they addressed environmental, geologic, and economic impact, noise, traffic, and safety, "at no time did the Board inquire about or did respondents address the issue of why the lot shape, abutting railroad tracks, nearby industrial zoning, or dedications required on Jones Boulevard created a hardship or difficulty which warranted the variance in conjunction with the conditional use permit. In fact, the only two times that hardship or difficulty was even mentioned, the conclusion was that none existed; the opinion of the Board's staff was that no legal hardship existed (although the staff proclaimed that they were not concerned about that fact and recommended granting the variance), and one county commissioner stated that he believed no hardship existed." at 7.
j. Application/Hardship/Record/Variance. "Based on the variance application and respondents' testimony to the Board, it is clear that respondents provided no evidence to prove that the unusual lot shape, abutting railroad tracks, nearby manufacturing zoning, and dedications on Jones Boulevard created a hardship or difficulty which warranted the Board to grant a // variance...." at 7-8.
k. Master plan/Presumption. "The master plan of a community is a 'standard that commands deference and a presumption of applicability,' but should not be viewed as a 'legislative straightjacket from which no leave can be taken.' Nova Horizon v. City Council, Reno, 105 Nev. 92, 96, 769 P.2d 721, 723 (1989)." at 9.
l. Master plan/Spot zoning/Variance/Sleight of hand. "The Board permitted respondents to do indirectly what they could not accomplish directly, i.e., manufacture concrete and asphalt in a zoning district which expressly forbids manufacturing. Such a decision amounts to spot zoning and provides no deference to the master plan in violation of this court's ruling in Nova Horizon v. City Council, Reno, 105 Nev. 92, 96, 769 P.2d 721, 723 (1989). Therefore, we conclude that the Board erred in granting the variance and that the Board's decision must be overturned." at 10.
m. Application/Master plan/Spot zoning/Public hearing/Variance. "An application for rezoning requires the submission of nine separate reports addressing the impact of the rezoning on the surrounding area. Clark County Code § 29.68.025(E). Additionally, non-conforming use requested, i.e., zone changes, are required to have at least one public hearing before the Board of County Commissioners. Clark County Code § 29.68.030. By cloaking their request for a zone change as one for a variance in conjunction with a conditional use, respondents received three major benefits. First, they were not required to submit the nine impact reports to the Planning Commission and the Board of County Commissioners, thereby lessening their burden of production. Second, they avoided having to request manufacturing zoning from the Planning Commission, which had twice before denied respondents' same request. Third, they avoided the public hearing in front of the Planning Commission which would have exposed their plan to greater scrutiny both by the Planning Commission and by citizens." at 10, n. 7.
49. County of Clark v. Doumani, 114 Nev. 46, 52, 952 P.2d 13 (1998).
a. Statute of Limitations. "We conclude
that 'filing of notice of the final action' under NRS 278.0235 is accomplished
when someone or some entity provides separate, written notice of the final action
to the secretary or clerk of the governing body, commission or board.
Further, although the statute does not expressly require that notice be given to the applicant, to give effect to the statute of limitations the applicant must be informed that notice of the final action was filed with the clerk or secretary. Thus, any notice filed with the clerk or secretary should also be forwarded to the applicant and should include the date on which the notice was filed with the clerk or secretary. Because the record discloses no filing of written notice of the final action with the Board's secretary in this matter, it appears that the limitations period never began to run. Accordingly, the district court did not err in concluding that respondents' action and proceeding were timely filed under NRS 278.0235.
b. Zoning/Abuse of discretion/Scope of review. "The grant or denial of a rezoning request is a discretionary act. See McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961) (stating that under the police power, zoning is a matter within sound legislative discretion and such legislative action must be upheld if the facts do not show that the bounds of that discretion have been exceeded.) If a discretinary act is supported by substantial evidence, there is no abuse of discretion. Enterprise Citizens v. Clark Co. Comm'rs, 112 Nev. 649, 918 P.2d 305 (1996). Further, a presumption of validity attaches to local zoning enactments and amendments. See McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961). (p. 6)
c. Zoning/Abuse of discretion/Scope of review. "Previously, we stated that we would review a district court decision granting or denying a writ petition for an abuse of discretion only if the district court has taken additional evidence from that heard by the commission or council. See City of Reno v. Harris, 111 Nev. 672, 895 P.2d 663 (1995). Otherwise, we would focus on the commission or council's decision and examine it for an abuse of discretion. See Harris, 111 Nev. at 677, 895 P.2d at 666. We see no reason, however, to make a distinction in the standard of review based on whether the disctrict court has taken additional evidence. Since the district court has discretion to grant or deny a writ petition, all appeals from a district court grant or denial of a writ petition will be reviewed under an abuse of discretion standard." (p. 6, n. 2)
d. Master plan. "We conclude that
because the evidence presented in support of and in opposition to the proposed
development was roughtly equal, the district court did not abuse its discretion
in determining that the Board abused its discretion by failing to give deference
to the master plan and denying the rezoning request." (p. 7)
[Developer wished to rezone from R-E (rural estates) to R-2 (medium density residential), where master plan designated R-2. Evidence in opposition: letters of protest, testimony of homeowners, commissioner's statement that land more suitable for single family homes, town board recommendation of denial based on traffic and neighborhood protests, and recognition that schools in area well over capacity. Evidence in support: letters in support, staff approval, conformance with master plan, and requested density "well below that already approved in the master plan." Otherwise, "the surrounding properties on two sides of the proposed development were zoned and developed at a higher density, while the surrounding properties on the other two sides were zoned and being developed at a lower density." (p. 7)]