9. Discretion. [See also Scope of review]
a. "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."
State v. Coleman, 67 Nev. 636, 641, 224 P.2d 309 (1950). No. 2.
b. "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."
Id. at 641.
c. "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."
Henderson v. Henderson Auto, 77 Nev. 118, 122, 359 P.2d 743 (1961). No. 5.
d. "Respondent, as plaintiff before the trial court, was required to establish abuse of discretion on the part of the city council...." Id. at 122.
e. "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.
f. "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." Id. at 122.
g. "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."
McKenzie v. Shelly, 77 Nev. 237, 242, 362 P.2d 268 (1961). No. 6.
h. "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." Id. at 242.
i. "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." Id. at 242.
j. "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."
Urban Renewal Agcy. v. Iacometti, 79 Nev. 113, 118, 379 P.2d 466 (1963). No. 7.
k. "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
Coronet Homes, Inc. v. McKenzie, 84 Nev. 250, 256, 439 P.2d 219 (1968). No. 10.
l. "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)."
Board of Comm'rs v. Dayton Dev. Co., 91 Nev. 71, 75, 530 P.2d 1187 (1975). No. 18.
m. "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
County of Clark v. Atlantic Seafoods, 96 Nev. 608, 611, 615 P.2d 233 (1980). No. 23.
n. "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." Id. at 611.
o. "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."
Board of Co. Comm'rs v. C.A.G. Inc., 98 Nev. 497, 501, 654 P.2d 531 (1982). No. 27.
p. 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."
City of Reno v. Nevada First Thrift, 100 Nev. 483, 487, 686 P.2d 231 (1984). No. 31.
q. "We have previously held, moreover, that such abuse is properly corrected by a writ of mandamus." Id. at 487.
r. "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."
City Council v. Irvine, 102 Nev. 277, 280, 721 P.2d 371 (1986). No. 32.
s. "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."
Travelers Hotel v. City of Reno, 103 Nev. 343, 345, 741 P.2d 1353 (1987). No. 34.
t. "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." Id. at 346.
u. "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."
Nova Horizon v. City Council, Reno, 105 Nev. 92, 98, 769 P.2d 721 (1989). No. 36.
v. "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."
Nevada Contractors v. Washoe County, 106 Nev. 310, 313, 792 P.2d 31 (1990). No. 37.
w. "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." Id. at 314.
x. "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."
Bing Construction v. Douglas County, 107 Nev. 262, 265, 810 P.2d 768 (1991). No. 39.
y. "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)."
Tighe v. Von Goerken, 108 Nev. 440, 442-443, 833 P.2d 1135 (1992). No. 40.
z. "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. Id."
City of Reno v. Lars Andersen and Assocs., 111 Nev. 522, 525, 894 P.2d 984 (1995). No. 43.
aa. "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))."
City of Las Vegas v. Laughlin, 111 Nev. 557, 558, 893 P.d 383 (1995). No. 44.
bb. 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)." Id. at 559.
cc. "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."
Id. at 559-560.
dd. "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."
City of Reno v. Harris, 111 Nev. 672, 677, 895 P.2d 663 (1995). No. 45.
ee. "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." Id. at 679.
ff. "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." Id. at 679.
gg. "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."
American West Dev. v. City of Henderson, 111 Nev. 804, 809, 898 P.2d 110 (1995). No. 46.
hh. "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)."
Enterprise Citizens v. Clark Co. Comm'rs, 112 Nev. 649, 653, 918 P.2d 305 (1996). No. 48.
ii. "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).
City of Reno v. Estate of Wells, 110 Nev. 1218, 1222, 885 P.2d 545 (1994). No. 41.
jj. "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
County of Clark v. Doumani, 114 Nev.46, 53, 952 P.2d 13 (1998) No. 49
kk. "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."
County of Clark v. Doumani, 114 Nev. 46, 53, n. 2, 952 P.2d 13 (1998) No. 49