37. Record. [See also Discretion &
Scope of review]
a. "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."
Henderson v. Henderson Auto, 77 Nev. 118, 121-122, 359 P.2d 743 (1961). No. 5.
b. The trial court's function is "limited to a review of the record of information presented to the city council...."
Urban Renewal Agcy. v. Iacometti, 79 Nev. 113, 118, 379 P.2d 466 (1963). No. 7.
c. 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."
Smith v. City of Las Vegas, 80 Nev. 220, 223, 391 P.2d 505 (1964). No. 8.
d. "No reasons for the revocation of the permit were stated, and none appear in the record before this court."
State ex rel. Johns v. Gragson, 89 Nev. 478, 481, 515 P.2d 65 (1973). No. 15.
e. "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." Id. at 482.
f. "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). Id. at 482-483.
g. "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)." Id. at 483.
h. "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."
County of Clark v. Atlantic Seafoods, 96 Nev. 608, 611, 615 P.2d 233 (1980). No. 23.
i. "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."
City Council, Reno v. Travelers Hotel, 100 Nev. 436, 439-440, 683 P.2d 960 (1984). No. 30.
j. "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. 276, 280, 721 P.2d 371 (1986). No. 32.
k. "This court upheld the trial court in Travelers, noting that the mere statements of interested parties and their counsel and the opinions of council members did not provide a proper reason for the decision." Id. at 281.
l. "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." Id. at 282.
m. "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."
State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 607-608, 729 P.2d497 (1986). No. 33.
n. "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.
Nova Horizon v. City Council, Reno, 105 Nev. 92, 97, 769 P.2d 721 (1989). No. 36.
o. "(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." Id. at 97.
p. "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." Id. at 98.
q. "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 are 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."
Tighe v. Von Goerken, 108 Nev. 440, 444, 833 P.2d 1135 (1992). No. 40.
r. "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.
s. "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.
t. "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)." Id. at 678.
u. A district court judge's personal inspection of the neighborhood is not the equivalent of hearing additional evidence. Id. at 677.
v. "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 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.' City of Reno v. Harris, 111 Nev. 672, 677, 895 P.2d 663, 666 (1995)."
Enterprise Citizens v. Clark Co. Comm'rs, 112 Nev. 649, 653, 918 P.2d 305 (1996). 48.
w. "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." Id. at 657.
x. "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...." Id. at 657.
y. 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." Id. at 657.
z. "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...." Id. at 657-658.