53. Use permit/Conditional Use permit/Special use permit.
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. 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.
Coronet Homes, Inc. v. McKenzie, 84 Nev. 250, 254,
439 P.2d 219 (1968). No. 10.
c. "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." Id. at 255.
d. "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." Id. at 256.
e. "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." Id. at 257.
f. "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."
Clark Co. Bd. Comm'rs v. Taggart Constr., 96
Nev. 732, 736, 615 P.2d 965 (1980). No. 24.
g. "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.
h. The Commission and the Board may "disapprove under architectural
supervision a project which both bodies approved at the conditional use permit
and variance hearings."
Bd. of County Comm'rs v. CMC of Nevada, 99 Nev. 739,
746, 670 P.2d 102 (1983). No. 29.
i. "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)."
City Council, Reno v. Travelers Hotel,
100 Nev. 436, 439, 683 P.2d 960 (1984). No. 30.
j. "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." Id. at 439-440.
k. "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.
l. "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."
Bing Construction v. Douglas County, 107 Nev. 262,
265, 810 P.2d 768 (1991). No. 39.
m. "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." Id. at
n. "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." Id. at 265.
o. "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."
City of Las Vegas v. Laughlin, 111 Nev. 557,
559-560, 893 P.d 383 (1995). No. 44.
p. "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. Id. at 265-266.
q. "[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." Id. at 266.
r. "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.
s. 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."
Id. at 527
t. "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.
u. "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.
v. "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.
w. "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.Adv.Op. 86, p. 3, 918 P.2d 305 (1996). No. 48.
x. 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 7.
y. "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
Travelers Hotel v. City of Reno,
103 Nev. 343, 345, 741 P.2d 1353 (1987). No. 34.
z. "Travelers' proposed development constituted a 'major project'
and thus required the issuance of a special use permit." Id. at 346.
aa. "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.