Attorneys for City of Reno · Reno City Attorney P.O. Box 1900 Reno, NV 89505 Code: 1170 KARL S....

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28Reno City Attorney

P.O. Box 1900 Reno, NV 89505

Code: 1170 KARL S. HALL Reno City Attorney WILLIAM J. McKEAN Deputy City Attorney Nevada State Bar No. 6740 Post Office Box 1900 Reno, Nevada 89505 Email: [email protected] (775) 334-2050 Attorneys for City of Reno

SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

IN AND FOR THE COUNTY OF WASHOE

STAN LUCAS, an individual and D. FRED ALTMANN,

Petitioners,

vs. CITY OF RENO, a political subdivision of the State of Nevada, Respondent.

Case No.: CV20-00253 Dept. No: 1

CITY OF RENO’S ANSWERING BRIEF

Respondent, City of Reno (“City”), by and through its attorneys, Reno City Attorney Karl

S. Hall, and Deputy City Attorney William J. McKean, respectfully submits this Answering Brief

in response to the Opening Brief in Support of Petition for Judicial Review Pursuant to NRS

278.0233 (“Pet. Opening Br.”) filed by Mr. Stan Lucas (“Petitioner” or “Lucas”).

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F I L E DElectronicallyCV20-00253

2020-06-10 01:59:13 PMJacqueline BryantClerk of the Court

Transaction # 7918702 : yviloria

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P.O. Box 1900 Reno, NV 89505

TABLE OF CONTENTS

I. INTRODUCTION .......................................................................................................... 1

II. ISSUES PRESENTED.................................................................................................... 1

III. STATEMENT OF RELEVANT FACTS ....................................................................... 2

A. The Proposed Project .......................................................................................... 2

B. The Approval Criteria ....................................................................................... 4

C. The Planning Commission Meeting .................................................................... 5

D. The Appeals to the City Council ....................................................................... 10

IV. STANDARD OF REVIEW .......................................................................................... 13

V. ARGUMENT ................................................................................................................ 14

A. The record contains substantial evidence supporting discretionary decision to deny the Applications. .............................................. 14

1. Planning Commission ........................................................................... 16 2. City Council .......................................................................................... 17 B. The decision to deny the Applications did not violate any vested right. ....................................................................................................... 18

C. The relief sought by Lucas—a judicial order mandating the City grant the Application—is not available in this case. ......................................... 20

VI. CONCLUSION ............................................................................................................. 22

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P.O. Box 1900 Reno, NV 89505

TABLE OF AUTHORITIES

CasesAmerican West Dev., Inc. v. City of Henderson, 111 Nev. 804, 898 P.2d 110 (1995) ..................................................................................... 13, 19

Boulder City v. Cinnamon Hills Assocs., 110 Nev. 238, 871 P.2d 320 (1994) ........................................................................................... 16

City Council v. Irvine, 102 Nev. 277, 721 P.2d 371 (1986) ..................................................................................... 14, 16

City of Las Vegas v. Laughlin, 111 Nev. 557, 893 P.2d 383 (1995) ..................................................................................... 13, 20

Kay v. Nunez, 122 Nev. 1100, 146 P.3d 801 (2006) ......................................................................................... 21

McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961) ............................................................................................. 16

Nev. Dep’t of Health and Human Servs. v. Samantha Inc., 133 Nev. 809, 407 P.3d 327 (2017) ............................................................................... 20, 21, 22

Nevada Contractors v. Washoe Co., 106 Nev. 310, 792 P.2d 31 (1990) ................................................................................. 13, 14, 15

Nevada Power Co. v. City of Henderson, 128 Nev. 922, 381 P.3d 645, 2012 WL 642553 (Feb. 24, 2012) ......................................... 15, 16

Nova Horizon, Inc. v. City Council of the City of Reno, 105 Nev. 92, 769 P.2d 721 (1989) ............................................................................................. 14

Seventy Acres, LLC v. Binion, 2020 WL 1076065 (March 5, 2020) .......................................................................................... 16

Smith v. Board of Wildlife Comm’rs, 2020 WL 1972791 (Nev. April 23, 2020).................................................................................. 21

Stratosphere Gaming Corp. v. City of Las Vegas, 120 Nev. 523, 96 P.3d 756 (2004) ...................................................................................... passim

Tate v. Nev. Bd. of Med. Exam’rs, 131 Nev. 675, 356 P.3d 506 (2015) ..................................................................................... 21, 22

Washoe Cnty. v. Otto, 128 Nev. 424, 282 P.3d 719 (2012) ........................................................................................... 21

Statutes

NRS 278.0233 ......................................................................................................................... 21, 22

NRS 278.080 ................................................................................................................................... 5

NRS 278.349 ................................................................................................................................. 21

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P.O. Box 1900 Reno, NV 89505

NRS 278.349(3)(a)-(k) .................................................................................................................... 4

NRS 278.349(3)(d) ................................................................................................................... 4, 15

NRS 278.349(3)(e) .................................................................................................................... 4, 15

NRS 278.349(3)(g) ................................................................................................................... 4, 15

NRS 278.349(3)(j) .................................................................................................................... 4, 15

Regulations

RMC § 18.02.102 .......................................................................................................................... 21

RMC § 18.06.102 ............................................................................................................................ 5

RMC § 18.06.202 ............................................................................................................................ 2

RMC § 18.06.405(d)(2)(b) .............................................................................................................. 5

RMC § 18.06.405(e)(1)................................................................................................................. 15

RMC § 18.06.405(e)(1)(a)-(h) ........................................................................................................ 4

RMC § 18.06.405(e)(1)(c)-(e) ........................................................................................................ 5

RMC § 18.06.405(e)(2)............................................................................................................. 5, 15

RMC § 18.06.405(e)(2)(a) .............................................................................................................. 5

RMC § 18.06.405(e)(2)(b) .............................................................................................................. 5

RMC § 18.06.405(e)(2)(d) .............................................................................................................. 5

RMC § 18.06.405(e)(2)(e) .............................................................................................................. 5

RMC § 18.06.405(e)(3)................................................................................................................... 5

RMC § 18.06.405(e)(3)(a) .............................................................................................................. 5

RMC § 18.08.101 ............................................................................................................................ 3

RMC § 18.08.406(14) ............................................................................................................... 8, 17

RMC § 18.08.406(e)(1)............................................................................................................. 4, 15

RMC § 18.08.406(e)(2)................................................................................................................. 15

RMC § 18.08.406(i) .................................................................................................................... 3, 4

RMC § 18.08.406(i)(1) ................................................................................................... 3, 7, 16, 20

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Reno City Attorney P.O. Box 1900

Reno, NV 89505

I. INTRODUCTION

The Court has ruled that its role in this proceeding is to “determine whether, based on the

administrative record, the local government entity’s decision is supported by substantial

evidence.” Order Granting Motion for Joinder et seq. (May 28, 2020), at 2 (emphases added).

The decision at issue is the denial of Altmann’s applications for a tentative map and related

special use permits (the “Applications”). Id. The administrative record is comprised of Record

of Proceedings (Bates-stamped R0001-R1336 and R2105-2134), and the Transcripts of Planning

Commission Meeting (on Dec. 18, 2019), and the City Council Meeting (on Jan. 22, 2200).

Lucas, however, requests the Court consider thousands of pages of documents that are

not contained in the administrative record. Pet. Opening Br. at 10-12. In particular, Lucas cites

Exhibits 1 and 2 (A-B) to the PJR which contain documents related to the “Settlement

Agreement in Case No. CV02-03469.” Presumably, these documents would have relevant been

to his request that the “Settlement Agreement in Case No. CV02-03469 [and related documents]

be confirmed and recognized as valid . . . and those rights and obligations of the parties be

adjudicated pursuant to NRS Chapter 30.010.” PJR at 36 (Prayer for Relief ¶3). That claim,

however, has been dismissed.1 Order Granting Motion for Joinder et seq. at 2. The City does

not believe those extraneous documents are properly considered by the Court on judicial review.

Instead, in this Answering Brief, the City details the substantial evidence in the actual

administrative record that supports the local land use decision in this case.

II. ISSUES PRESENTED

A. Does the record contain substantial evidence supporting discretionary decision to deny the Applications?

B. Did the decision to deny the Applications violate any vested right? C. Is the relief sought by Petitioner—a judicial order mandating the City approve the

Applications—available where the City did not “impose” any unlawful or arbitrary conditions, and when such relief is not provided by NRS 278.0233?

1 In complying with Lucas’ request to provide additional documents (R1337-R2104 and R2135-R7052), the City expressly reserved its right to argue these documents are not part of the administrative record for judicial review. Notice of Trans. of Record (April 15, 2020), at 1-2.

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III. STATEMENT OF RELEVANT FACTS

A. The Proposed Project

The Applications in this case sought approval of a proposed residential subdivision on

approximately 955 acres of land in west Reno (the “Property”). R0019, R1353. The Property is

owned by Mr. Stan Lucas. Pet. at ¶ 2. As owner, Lucas had the option of filing land use

applications on his own behalf, or by authorizing another person to serve as applicant. Reno

Municipal Code (RMC) § 18.06.202. Lucas elected to designate the master developer, Mr. D.

Fred Altmann to be the Applicant. R1337-R1340. Altmann filed the Applications in July 2019.

R1346; R1358. The Applications included a request for approval of a tentative map for the

proposed residential subdivision comprised of 676 new homes. R0019, R1353. The filing also

included related applications for special use permits for grading (“cuts and fills”), hillside

development, and disturbance of major drainageways. R1346.

The site is located north of U.S. Highway 40 West and to the west of Del Webb Parkway

in Somersett. See Figure 1, infra (area outlined in yellow).

Figure 1 (Map at R0019, 0835)

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The terrain constrains development on most of the site. Approximately 84 percent of the site

(836 acres) contain slopes in excess of 15 percent grade, leaving only 16 percent (159 acres) with

slopes less than 15 percent. R0024. The site is also constrained by significant ridgelines,

drainage ways, and major rock outcroppings. Id.

The Property, along with several other parcels, was originally annexed into the City in

2001, as result of a settlement agreement involving Washoe County and the City. R1148,

R1231. In 2004, as a result of that same litigation, the City amended its zoning code to adopt the

Mortenson-Garson Overlay District (MGOD), now codified at RMC § 18.08.406(i). The MGOD

defines three zoning districts (Planning Areas 1, 2 & 3). The Property is in Planning Area 1. Id.

§ 18.08.406(i)(1). The SF-6 (Yellow) and OS (Green) zoning for Planning Area 1 is depicted in

the official zoning map as follows:


The SF-6 zoning allows for one single-family unit on a 6,000 square foot lot. RMC § 18.08.101.

The “maximum residential development potential” in Planning Area 1 capped at 676 units. Id.

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§ 18.08.406(i), Table 18.08.48. The OS zoning signifies “permanent open space” restricted to

uses “directly related to the open space function of the land, are necessary to provide community

services, or are necessary for the health, safety or welfare of the public.” Id. § 18.08.406(e)(1).

The developer’s interpretation of “maximum residential development potential” as setting a

“minimum” entitlement was a contributing factor in the denial of the Applications.

B. The Approval Criteria

In order to approve an application for a tentative map, the decision-making body must

consider eleven statutory factors. NRS 278.349(3)(a)-(k); R014-R0015. The four factors at

issue in this case are:

(d) Availability and accessibility of public services such as schools, police protection, transportation, recreation and parks.

(e) Conformity with the zoning ordinances, master plan, and elements thereof, except that if any existing zoning ordinance is inconsistent with the master plan, the zoning ordinance takes precedence.

(g) The effect of the proposed subdivision on existing public streets and the need for new streets or highways to serve the subdivision;

(j) Availability and accessibility of fire protection, including, but not limited to, the availability and accessibility of water and services for the prevention and containment of fires, including fires in wild lands.

NRS 278.349(3)(d), (e), (g), (j).

Approval of a conditional or special use permit (SUP) requires eight specified findings

that apply to all SUPs; if the decision-making body cannot make all of them, then the application

must be denied. Reno Municipal Code (RMC) § 18.06.405(e)(1)(a)-(h); R0015-R0016. The

three general SUP findings at issue are:

(c) There are or will be adequate services and infrastructure to support the proposed development.

(d) The proposal adequately mitigates the project’s traffic impacts and provides a safe pedestrian environment.

(e) The proposed site location and scale, intensity, density, height, layout, setbacks, architectural and overall design of the development and the uses proposed, contribute to and enhance the character of the area in which it is located.

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RMC § 18.06.405(e)(1)(c)-(e). In addition, there are SUP findings specific to hillside

development and grading (cuts and fills). RMC § 18.06.405(e)(2) & (3); R0016-R0017. The

four specific findings for an SUP for hillside development at issue are:

(a) The proposed project mitigates environmental degradation, including slope failure, erosion, sedimentation, and stormwater run-off.

(b) The proposed project utilizes grading practices that are appropriate for hillsides and designed to minimize the visibility of unsightly scarring.

(d) The proposed project adheres to applicable hillside development design standards and to master plan provisions related to development in sloped areas.

(e) The proposed project’s site layout and design features adequately mitigate potential visual impacts of development near prominent ridgelines and within other visually prominent areas.

RMC § 18.06.405(e)(2)(a), (b), (d), (e). The specific finding at issue for an SUP for grading

(cuts and fills) is that the “slopes can be treated in a manner which does not create negative

visual impacts.” RMC § 18.06.405(e)(3)(a).

Under its authority in NRS 278.080, the City has established a planning commission to

render decisions on tentative maps and SUPs. RMC § 18.06.102; § 18.06.405(d)(2)(b). The

commission’s decisions are appealable to the City Council. Id. The planning commission

decision and subsequent appeal to the City Council at issue in this case are summarized in turn.

C. The Planning Commission Meeting

The planning commission conducted a public meeting to consider the Applications on

December 18, 2019. R1122; Transcript of Dec. 18, 2019 Planning Commission Meeting (“Tr.

12/18/2019”) at 3. Altmann attended the meeting, Tr. 12/18/2019 at 143, along with his land

development consultant, Derick Wilson. Id. at 3. Mr. Wilson presented an overview of the

proposed development, id. at 3-14, and the City’s planning staff positions were summarized by

Ms. Angela Fuss. Id. at 14-30. Each of the commissioners indicated that they had visited or

were personally familiar with the project site. Id. at 30-31. The commission then heard public

comment. Nearly 40 members of the public submitted written oppositions to the proposed

development. R1289-R1327; Tr. 3/20/2019 at 81. Another 23 concerned residents testified in

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opposition. Tr. 12/18/2019 at 32-80; R1250-R1288. The primary concerns included (i) the

appropriateness of proposed location of units given the exsiting residential development

(Somersett), the ridgeline topography, and the prescribed zoning, (ii) the adequacy of

infrastructure and utilities including fire, water and police services and (iii) the increased traffic

impacts on existing public streets (including Edinburgh Drive, Waterville Drive, and Highway

40). Tr. 3/20/2019 at 12-66. Other than the Applicant and City staff, no person spoke in favor of

approving the Applications. Id. at 32-80.

Subsequently, the commissioners commenced their deliberations. First, commissioners

questioned the proposed location of units given the zoning in the MGOD. Tr. 12/18/2019 at 81-

33. Staff explained how the developer’s proposed location of the lots compared with the SF-6

(Yellow) and OS (Green) areas as depicted in that official zoning map (i.e., Figure 2, supra).

Staff presented an overlay map showing approximately 1/3 (more than 200) of the proposed lots

are located outside of the SF-6 (Yellow), and instead located in OS (Green).


Tr. 12/18/2019 at 96-97. Staff recommended that the OS (Green) depicted in the MGOD be

considered “conceptual” zoning, with “actual” zoning to be determined in the tentative map. Id.

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at 99-100; R1139. However, Staff’s recommendation was subject to a condition (discussed

below), that 26 lots within the OS-zoned area adjacent to Somersett be relocated. R1136.

Figure 4 (Map at R1240)

The developer agreed to move some, but not all, of the 26 lots. Tr. 12/18/2019 at 131; R1229.

Lucas “wanted to have the maximum amount of lots [i.e., 676] that he could get . . ..” Id. at Tr.

12/18/2019 at 164-165. Staff confirmed that nothing in the MGOD ordinance indicates the OS-

zoned areas are merely “conceptual bubbles,” as opposed to delineating the applicable zoning.

Id. at 89. Commissioners questioned why, then, in the absence of code amendment changing

the zoning to SF-6, could any development be allowed OS zoned areas. Id. at 90-91.2

The commissioners also questioned the extent of development affecting significant

ridgelines on the Property. Staff’s report explained that the MGOD identifies only one

significant ridgeline within Planning Area 1—located on the southeast corner of the Property.

R1139, R1240. However, Staff considered an additional ridgeline that runs north of this area,

along the eastern site boundary adjacent to Somersett. R1139. Staff explained that its proposed

2 As reflected in the record, the undersigned counsel explained the position advocated by City staff that the MGOD zoning ordinance—specifically RMC § 18.08.406(i)(1), which depicts the SF-6 and OS zoning for Planning Area 1—should be interpreted by reference to the historical documents predating the adoption of the ordinance. Tr. 12/18/2019 at 99-100; id. at 55 (summarizing discussion with the undersigned counsel that the issue could “reasonably be debated and people can have different opinions and the commission is free to adopt its own interpretation.”). The planning commission declined to adopt Staff’s interpretation, instead relying on the plain language of the ordinance. Id. at 176-194.

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condition (discussed above) would move the 26 lots proposed on this ridgeline to areas at least

400 feet from the boundary with Somersett. Tr. 12/18/2019 at 130; R1136. Staff noted that

while the MGOD does not identify this ridgeline as significant, it is in an OS zone. Id. Again,

the developer would not agree to relocate all of the 26 lots. Tr. 12/18/2019 at 131; R1229.

In addition to the zoning and ridgeline development issues, the commissioners also

expressed concerns regarding the adequacy of fire protection service and facilities. Staff’s

report explained that the Property is located in a High Hazard Wildland-Interface Area, and the

current response time from existing fire stations is between 9-11 minutes (exceeding the 6-

minute master plan performance measure). Staff explained that development code anticipates a

new fire station to serve the MGOD. R1141; RMC § 18.08.406(14). Staff’s recommendation,

to attempt to ensure that would happen, would entail the developer remit a “per door

contribution” towards a future fire station. R1141. Staff’s calculation took the 676 units

requested in the Application, divided by the 3,000-unit maximum for all three MGOD project

areas, to derive a proportionate share of the estimated cost of a future fire station. Tr.

12/18/2019 at 116. The commissioners, however, observed that Staff’s proposal did not ensure

that the fire station would actually be built. In order for the proposed funding mechanism to

fully fund the fire station, all of 3,000 units in all three MGOD project areas would need to be

developed. Under the proposed mechanism, if the necessary funding is not collected within 10

years, then any contributions would be refunded to the Applicant. Id. at 117-118.

With respect to water service, Staff’s report indicated the proposed purveyor would be

Truckee Meadows Water Authority (TMWA), subject to annexing the Property into its service

territory, and constructing and dedicating infrastructure in accordance with TMWA’s rules.

R1140. Several commissioners had questions the regarding the status of TMWA’s ability to

provide service. Tr. 12/18/2019 at 150. In response, John Enloe, of TMWA, indicated that

“there’s not capacity available today to serve this project,” describing the “infrastructure

required” to do so as “significant.” Id. at 151. Mr. Enloe explained that the Applicant, along

with two other planning area developers were in the process of proposing a joint funding

agreement to identify and fund the facilities to serve all 3,000 units in the MGOD. Id. Mr.

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Enloe characterized the effort as a “fairly lengthy process.” If TMWA “started today,” Enloe

stated, “it would be two or three years to get water service of any capacity to this area.” Id.

Finally, with respect to potential traffic impacts, Staff’s report explained that access to

the proposed subdivision would be via Highway 40 through the West Meadows subdivision (at

the southwest corner of the Property), via Edinburgh Drive and Waterville Drive. R1144.

According to the developer’s traffic study, the project is estimated to generate 6,065 average

daily trips, but with that additional traffic it would still consider the level of service to be

adequate. The study did not recommend any roadway or intersection capacity improvements

(with the exception of left turn lanes at the Highway 40/Waterville Drive/Summerset Drive

intersection). R1145. The commissioners observed that the absence of any recommended

improvements failed to address the concerns raised by residents using the popular bicycle path,

which is not incorporated into the existing Highway 40/Edinburgh Drive roundabout, which

would provide access to the proposed subdivision. Tr. 12/18/2019 at 158. On questioning from

the commissioners, the representative from the Nevada Department of Transportation (NDOT),

acknowledged that the agency had yet to determine the impacts to the NDOT road network. Tr.

at 157-158. She confirmed that NDOT recognizes the bike path as being a well-used bike path,

but was not certain whether adequate accommodations had been made for bicyclists at the

existing roundabout. Id.

Against this backdrop, commissioners stated they were unable to make the tentative map

findings (b) (availability of water), (c) (accessibility of utilities), (d) (accessibility of public

services), (e) (conformity with the zoning), (h) (land characteristics such as slope) and (j)

(accessibility of fire protection), the general SUP finding (c) (enhancement of the character of

the area), and the hillside SUP findings (a) (mitigation environmental degradation including

slope failure), and (c) (grading practices that are appropriate for hillsides and designed to

minimize the visibility of unsightly scarring). Tr. 12/18/2019 at 176-194. On these bases, the

planning commission unanimously voted to deny the Applications. Id. at 195.

Mr. Altmann appealed the planning commission decision. R0421-R0584.

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D. The Appeals to the City Council

On January 22, 2020, the City Council considered Altmann’s appeal. At the

commencement of the hearing, the city clerk indicated that a petition signed by 576 individuals

had been submitted requesting that the City Council uphold the planning commission’s decision

to deny the Applications. Tr. 1/22/2020 at 4; R0692-R0749.

In addition, the clerk indicated more than 100 individual letters and comments had also

been received. Tr. 1/22/2020 at 4. All of those written communications also supported

upholding the planning commission’s denial. R0587-R0691, R0750-R0768, R0782-R0832,

R0989-R1082. They included submissions from Somersett property owners, with homes

adjacent to the area with the 26 lots staff recommend be relocated (see Figure 4, supra), noting

the area is zoned OS, and describing the negative visual impacts of the proposed development

on that prominent ridgeline. R0615-R0616, R0627, R0641, R0643, R0660, R0661-0662,

R0666, R0668, R0759. Other property owners reported on dangerous wildfire conditions and

their concerns with the adequacy and timeliness of fire protection and water service. R0653,

R0756, R0758, R0784, R0594, R0596, R0602, R0611, R0617, R0628. Finally neighboring

residents, including those with homes on Edinburgh Drive and Waterville Drive, described

existing traffic conditions and the impacts and vehicle and pedestrian safety at the roundabout

and on the single lanes of Highway 40. R0593, R0594, R0602, R0620, R0621, R0626, R0632,

R0634, R0637, R0652, R0654, R0656, R0663, R0677, R0750, R0765, R0785.

The clerk then noted that Mr. Altmann had made a request to have the appeal hearing

continued for 30 days. Tr. 1/22/2020 at 4-5. Before considering the request, City Council took

public comment. Id. at 6. Public comments were made by 18 individuals, including Somersett

residents describing the prominent ridgeline adjacent to their homes, and detailing the negative

visual impacts that would result from the developer’s rejection of staff’s recommendation to

relocate all of the proposed 26 lots in that OS-zoned area. Id. at 11-13, 16-19, 27-29.

Other property owners presented concerns regarding fire protection. A retired deputy

fire chief detailed his conclusion that the “fire project is inadequate for this development

because of the excessive response times.” Id. at 23-24. And another resident explained the

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proposed funding mechanism for the fire station necessary to address the excessive response

times was insufficiently reliable as “all 3,000 homes in the whole entire area [would] have to

be build out in order for there be enough funds just to build the fire station.” Id. at 29.

Finally, residents explained the factual bases for their traffic-related concerns.

Homeowners on Edinburgh Drive and Waterville Drive—described as the two “little two lane

street[s]” serving the area—stated the additional traffic would “pose a constant threat to

pedestrians,” including kids “who walk every day.” Id. at 33-34; 44-45. Another resident

noted that additional trips on Highway 40 would endanger bicyclists using the popular bike

trail that “just abruptly ends” at the Highway 40/Edinburgh Drive roundabout. Id. at 39-41.

Others described how, in the “event of an evacuation and a fire,” Edinburgh and Waterville

Drives would be unable to accommodate traffic to “get equipment in” and “evacuate

residents.” Id. at 41-42; 29-30.

Following the public comments Councilmember Jardon moved to deny Altmann’s

request to continue the hearing. The motion was seconded by Councilmember Reese, and

carried unanimously. Id. at 45-47.

City staff then made a brief presentation, which included a background of the adopting of

the MGOD zoning code, and a summary of issues of concern including the locating of lots in

areas with OS zoning and on ridgelines, the “unique” proposal to fund a future fire station, and

concerns regarding traffic impacts. Id. at 47-53.

Altmann’s land development consultant, Derick Wilson, then presented the Applicant’s

case. Id. at 54. Mr. Wilson noted that the “zoning of the site is governed by the overlay district”

that is “included in the city’s zoning code.” Id. at 54. With respect to the location of the

residential lots, Mr. Wilson explained that they had “chose areas of the site that were most

developable and those weren’t always in those yellow [SF-6 zoned] bubbles.” Id. at 56. With

respect to the controverted 26 lots (i.e., those that staff had recommended to be relocated, see

Figure 4, supra), Mr. Wilson defended the developer’s decision to leave about “half of those

lots,” pointing out that the MGOD only identifies “two sections of significant ridgelines,” and

only “identifies visual impacts to Highway 80.” Id. at 57-59. Mr. Wilson asserted that they had

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still evaluated that ridgeline for “impacts from adjoining neighborhoods.” Mr. Wilson did not

offer any explanation to address concerns regarding the adequacy and timeliness of fire

protection and water service. And, while noting that a traffic engineer was available to answer

“specific questions,” id. at 59, he did not offer any explanation to address concerns regarding

the impacts and vehicle and pedestrian safety on Edinburgh and Waterville Drives, the

roundabout, or Highway 40.

The City Council then proceeded to their questioning and deliberation. They questioned

staff about the SF-6 and OS zoning areas in the MGOD code. Staff acknowledged that zoning

map amendments had been required where other properties in the MGOD had changed areas to

“completely different types of uses.” Id. at 64. Councilmember Brekhus inquired why the

developer had decided not to request a zoning map amendment in this case, but answered her

own question: “it’s the applicant’s job to request . . . what they’re requesting.” Id.

Councilmember Reese requested an explanation regarding the developer’s request for 676 units.

In response, Mr. Altmann acknowledged that in 2017 he had presented to neighboring property

owners a “map that we were working on that had 470 houses,” but at that time “had not gotten

even close to presenting a map to the city.” Id. at 73. Councilmember Jardon noted that she,

along with the Somersett owner’s association, had been presented a 470-unit project in

September 2017, but subsequently, in July 2018, “the application was filed for 676 lots.” The

developer’s response as to why it went from “470 to 676” was simply “because we can.” Id. at

75-76.

At the conclusion of their questioning, councilmembers summarized their positions.

Councilmember Reese summarized his position as follows:

[W]ith regard to the tentative map findings I cannot make findings sufficient for tentative map finding D, which is availability and access of public services; G, which is the effect on existing public streets; J, which is the availability and access of fire protection.

With regard to the SUP findings there are two different categories for me that are concerning. So with regard to the general findings I cannot make findings sufficient on item C, which is again sort of overlaps with some of the other ones, but it’s adequate services and infrastructure for the project; D, which is the mitigation of traffic impacts; E, which is that the proposed site location is

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appropriate for the area. * * * [W]ith regard specifically to the SUP for hillside development . . . I cannot make findings for A, which has to do with slope degradation; B, which are the grading practices, those cuts and fills; and then E, which is mitigation again of visual impacts near prominent ridgelines.

Id. at 85-86. Councilmember Jardon stated that in addition to the findings cited by the planning

commission, she was unable to make the following findings:

I cannot make finding E of the tentative map—tentative map, which is conformity with the zoning ordinances master plan and elements thereof except that if any existing zoning ordinance is inconsistent with the master plan, the zoning ordinance takes precedent.

I also cannot make item—finding E of the special use permit. The

proposed site location and scale intensity, density, height, layout, setbacks and architectural and overall design of the development and the use proposed is—is inappropriate to the area in which it’s located.

And the special use permits for hillside developments, I cannot make

finding B, D or E. Item B is that the proposed project utilizes grading practices that are, in my opinion, not appropriate for the hillsides and designed to minimize the visibility of unsightly scarring.

Item D, the proposed project adheres—does not adhere, in my opinion, to

the applicable hillside development design standards; and item E, finding E, the proposed project site layout and design feature don’t adequately mitigate potential visual impacts.

Id. at 92-93. Councilmember Jardon, seconded by Councilmember Reese, moved to affirm the

Planning Commission’s decision. The City Council unanimously voted in favor of the motion.

IV. STANDARD OF REVIEW

A local government’s decision to deny a land use application constitutes a “discretionary

act.” American West Dev., Inc. v. City of Henderson, 111 Nev. 804, 807, 898 P.2d 110, 112

(1995) (applications for “subdivision maps” are subject to “governmental discretionary action”);

City of Las Vegas v. Laughlin, 111 Nev. 557, 559, 893 P.2d 383, 384 (1995) (approval of a

“special use permit is a discretionary act”) (citation omitted). Such a discretionary act is

presumed to be valid. Nevada Contractors v. Washoe Co., 106 Nev. 310, 314, 792 P.2d 31, 33

(1990) (“Because of [a local agency’s] particular expertise in zoning, courts must defer to and

not interfere . . . if this discretion is not abused.”). Accordingly, a land use decision is to be

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sustained unless it manifests an abuse of that discretion—a high standard “most often found in an

apparent absence of any grounds or reasons for the decision.” City Council v. Irvine, 102 Nev.

277, 280, 721 P.2d 371, 372-73 (1986) (defining “arbitrary” as “baseless,” “despotic” and

“capricious” as “a sudden turn of mind without apparent motive; a freak, whim, mere fancy.”).

There is no abuse of discretion where the decision is supported by substantial evidence.

Stratosphere Gaming Corp. v. City of Las Vegas, 120 Nev. 523, 530, 96 P.3d 756, 761 (2004).

V. ARGUMENT

A. The record contains substantial evidence supporting discretionary decision to deny the Applications.

Where the administrative record contains substantial evidence supporting the decision of

the local government, the local government has not abused its discretion, and a court may not

disturb that decision. Nevada Contractors, 106 Nev. at 313, 792 P.2d at 33 (affirming a local

government’s denial of a special use permit where the record showed negative traffic impacts,

even though the site was zoned for the proposed use); Stratosphere, 120 Nev. at 528, 96 P.3d at

760 (ruling that deference to a local government’s discretion is most appropriate where the

ordinance requires the exercise of personal deliberation and judgment); Nova Horizon, Inc. v.

City Council of the City of Reno, 105 Nev. 92, 769 P.2d 721 (1989) (considering a “request for a

special use permit and acceptance of a tentative subdivision map” involves . . . the exercise of a

fair and enlightened discretion by the Council based upon substantial evidence”).

The Nevada Contractors case is instructive. That case involved a local government’s

decision to deny a special use permit for a concrete plant. Id., 106 Nev. at 311, 792 P.2d at 32.

At the planning commission hearing, opponents of the plant voiced concerns regarding “traffic

impact” and “negative influence on neighboring residential areas.” Id. at 312, 792 P.2d at 32.

The planning commission approved the permit (by a four-to-three vote), and a “nearby resident”

appealed to the county commission. Id. The applicant and NDOT presented evidence in favor of

the plant; opponents presented evidence against. The county unanimously voted to deny the

permit, and the developer sought relief in the district court, which reversed the board. Id.

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On appeal, the Nevada Supreme Court reversed—affirming the county’s decision. The

Court started by ruling it will not disturb a local government’s denial of a special use permit

where that “discretionary act” is supported by “substantial evidence.” Id. at 313, 792 P.2d at 32.

The Court noted that at the county commission hearing “interested parties on both sides spoke in

favor of their respective positions,” and county commissioners “expressed their opinions.” The

Court noted that such statements, if “unsupported by proof,” do not constitute substantial

evidence. However, the Court went on to note that the record included additional evidence

supporting the county’s decision—including non-conformity with the area’s master plan,

detrimental impact to “current and future development” (even though the site was principally

zoned for the proposed use), and “traffic problems.” Id. at 313, 792 P.2d at 32. On that record,

the Court concluded the county’s decision was supported by “substantial evidence.” Id.

Here, as in Nevada Contractors, the denial of the Applications was a discretionary

decision supported by substantial evidence. Approval of the tentative map required both the

Planning Commission and City Council to consider the conformity of the proposed project with

the applicable zoning ordinances (including ridgeline development), the accessibility of fire

protection (including the availability of water service ), and the effect of the proposed

subdivision on existing public streets. NRS 278.349(3)(d), (e), (g), (j). Approval of the SUPs

required both bodies to affirmatively find that the proposed development will have adequate

services and infrastructure, will mitigate traffic impacts and provide a safe pedestrian

environment, that the intensity and density of the project will enhance the character of the area

in which it is located, and will adequately mitigate visual impacts near prominent ridgelines

and other visually prominent areas. RMC § 18.06.405(e)(1) & (2). Any one of these factors

standing alone is grounds for denial. Id.; see also Nevada Power Co. v. City of Henderson, 128

Nev. 922, 381 P.3d 645, 2012 WL 642553 (Feb. 24, 2012) (unpublished disposition) (“non-

compliance with a single criterion is sufficient grounds for denying a [conditional use] permit

application”).

///

///

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1. Planning Commission

The record in this case makes clear that the Planning Commission properly exercised its

discretion in evaluating Applications based on the applicable factors.3 First, each commissioner

stated his or her personal knowledge of conditions in the subject area. Their individual

knowledge was supplemented by nearly 40 written oppositions, and the testimony of 23

concerned residents regarding the proposed location of residential units given the ridgeline

topography and proximity to existing residential development (Somersett), the lack of adequate

fire service and water infrastructure, and the increased traffic impacts on existing public streets.

Such personal knowledge, coupled with an “outpouring of concern” from local residents,

provides substantial evidence for the denial of a land use application. Nevada Power Co., 128

Nev. 922, 381 P.3d 645, 2012 WL 642553, *2 (citing McKenzie v. Shelly, 77 Nev. 237, 240-41,

362 P.2d 268, 269–70 (1961) (in reviewing an application for a conditional use permit, members

of the decision-making body take into consideration their own personal knowledge of the area).

Second, the commissioners interpreted the OS zoning specified in the MGOD ordinance

as the proscribed zoning (as opposed to “conceptual bubbles”), and accordingly concluded that

development could not be allowed in OS zoned areas unless or until the zoning in those areas

was changed to SF-6. Such an interpretation of a local land use ordinance must be presumed

valid “absent a manifest abuse of discretion.” See, e.g., Seventy Acres, LLC v. Binion, 2020 WL

1076065 (March 5, 2020) (unpublished disposition) (“[T]his court presumes a city’s

interpretation of its land use ordinances is valid “absent a manifest abuse of discretion.”)

(quoting Boulder City v. Cinnamon Hills Assocs., 110 Nev. 238, 247, 871 P.2d 320, 326 (1994).

Here, the record provides no basis for concluding that the planning commission manifestly

abused its discretion in its interpretation of RMC § 18.08.406(i)(1).

3 The decision-making body is not required to explain on the record its rationale for the denial of a land use application. Irvine, 102 Nev. at 280, fn. 4, 721 P.2d at 37 (“[G]iven the presumption of propriety of the governmental action, and given the heavy burden placed upon a disappointed applicant, there is no legal requirement that a city board ‘explain’ a denial or that it expressly state or enumerate “grounds” in the administrative record.”). Nevertheless, there are numerous comments in the record indicating why the commissioners, as well as the councilmembers in affirming that decision, all voted to deny the Applications in this case.

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Third, the commissioners’ inability to make tentative map findings related to

accessibility of fire protection and availability of water service is also supported by substantial

evidence in the record. The commissioners declined to rely on Staff’s proposed mechanism for

funding the new fire station to serve the MGOD as anticipated by code (RMC § 18.08.406(14)).

This determination is based on their observation that Staff’s proposal would not ensure that the

fire station would actually be built for a proposed subdivision located in a High Hazard

Wildland-Interface Area, with current response times that exceed the 6-minute master plan

performance measure. And the commissioners’ inability to make findings regarding availability

of water service is supported by the testimony of Mr. Enloe regarding the current lack of

capacity, the need for significant infrastructure, and the fact “it would be two or three years to

get water service of any capacity to this area” even if “TMWA “started today.” Section III.C.

2. City Council

Similarly, in affirming the Planning Commission’s denial, the City Council properly

exercised its discretion. The concerns expressed by individual council members included the

proposed location of residential units in areas currently zoned as OS in the MGOD code. Section

III. D (comments of Member Brekhus). In addition, council members noted the inability to find

that public services were available for the proposed project or the effect of the proposed

subdivision on existing public streets. Id. (Member Reese). Finally, as Member Jardon made

clear, these specific findings were in addition to those cited by the planning commission. Id.

The council members’ stated concerns regarding the Applications are supported the

overwhelming public opposition evinced by:

• Public comment by 18 individuals.

• Over 100 letters and comments submitted to City Counsel.

• The petition signed by 576 individuals.

Section III. D. Through their comments and letters, neighbors and residents identified concerns

directly implicating the findings required by the underlying statute and the city ordinance. These

included comments from residents with homes adjacent to the area with the controverted 26

lots—noting the OS zoning of the area and describing the negative visual impacts of the

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proposed development on that prominent ridgeline. The comments included those of a retired

deputy fire chief detailing his conclusion that the “fire project is inadequate for this

development because of the excessive response times,” and from another resident who

explained the unreliability of Staff’s proposed funding mechanism for the fire station necessary

to address the excessive response times. Id. Finally, comments from residents explained the

additional traffic would “pose a constant threat to pedestrians” on the two existing streets that

provide the only access to the proposed subdivision (Edinburgh Drive and Waterville Drive),

and would endanger bicyclists at the Highway 40/Edinburgh Drive roundabout. Others

described how Edinburgh and Waterville Drives would be unable to accommodate traffic from

residents and fire service in event of an evacuation and a fire. Id.

At the City Council hearing, Member Reese stated his inability to find that services and

infrastructure were adequate for the project, that traffic impacts were adequately mitigated, that

the proposed project location is appropriate for the area or visual impacts near prominent

ridgelines were adequately mitigated. Section III. D. Member Jardon stated her inability to find

that the intensity and density of the proposed project is appropriate to the area in which it’s

located, will enhance the character of the area in which it is located, or will adequately mitigate

visual impacts near visually prominent areas. Id. All of these concerns are supported by the

specific public comments by 18 individuals, the more than 100 letters and written comments, and

the petition signed by 576 individuals.

In summary, the record contains substantial evidence supporting the decision to deny the

Applications, and accordingly the decision was not a manifest abuse of discretion. Stratosphere,

120 Nev. at 530, 96 P.3d at 761.

B. The decision to deny the Applications did not violate any vested right.

Petitioner contends that the denial of the Applications was a “violation of Lucas’s vested

development rights” under the zoning designations in the MGOD. Pet. Opening Br. at 33. A

zoning designation, however, does not give a developer a vested right to have its development

applications approved. Stratosphere, 120 Nev. at 527-28, 96 P.3d at 759-60 (holding that

because city’s site development review process involved discretionary action by council, the

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project proponent had no vested right to construct). “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.” American West Dev., 111 Nev. at 807, 898 P.2d at 112. In

this case, however, the Applications for a tentative map and SUPs were all subject to the City

Council’s discretionary decision making, no matter the zoning designation.

The Stratosphere Gaming case is instructive. The case involved a casino’s application

for approval to develop a rollercoaster ride. 120 Nev. at 524, 96 P.3d at 757. Approximately 20

individuals spoke in opposition, citing the “ride’s proximity to the residential neighborhoods and

the increased traffic and noise level it would generate,” and other individuals submitted written

statements (675 in support; 175 against). Id. at 524-25, 96 P.3d at 758. The city council

unanimously denied the application. On appeal to the Nevada Supreme Court, the casino raised

two arguments. First, the casino argued it had a “vested right to build the proposed ride because

the [city] previously approved the [casino’s] application to build another ride on the same

property and because the ride is permitted within existing zoning.” Id. at 527, 96 P.3d at 759.

The Court, however, reiterated that “rights in a proposed development project to vest, zoning or

use approvals must not be subject to further governmental discretionary action affecting project

commencement . . ..” Id., 96 P.3d at 760-61 (quoting American West Dev., 111 Nev. 807, 898

P.2d at 112). The Court further ruled that even where a project is permitted under the existing

zoning, it is “within the discretion and good judgment of the municipality to determine what

specific use should be permitted.” Id. at 524-25, 96 P.3d at 758.

Second, the casino argued the city’s decision was arbitrary and capricious because

“public opposition” is “not substantial evidence,” and because the casino provided “substantial

expert evidence” to rebut that opposition. Id. at 528, 96 P.3d at 760. The Nevada Supreme

Court, however, found that the city’s ordinance “invites public comment” by requiring a finding

that the project is “harmonious and compatible” with the area. Id. at 528-29, 96 P.3d at 760.

The Court also noted it had previously “recognized” that “‘substantial and specific’ public

opposition [can] constitute substantial evidence to support a local government’s decision to deny

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a request for a special use permit.” Id. (citing Laughlin, 111 Nev. at 559, 893 P.2d at 385). The

Court further ruled that public opposition—which included concerns regarding the project’s

“compatibility” with the surrounding area, and the increased traffic and resulting safety

concerns—implicated the findings required by the city’s ordinance, and thus “establish[es] a

valid basis” for the city’s denial of the project. Id. at 529-30, 96 P.3d at 761. Finally, the Court

held that while the casino did provide evidence rebutting some of the opposition’s concerns, a

court “cannot substitute [its] judgment for that of the City Council as to the weight of the

evidence.” Id. at 530, 96 P.3d at 761.

Here, in contrast to Stratosphere, there is a threshold issue of whether Lucas’s proposal to

develop the “maximum residential development potential” of 676 units which requires locating

more than 200 units in OS zoned areas is even permitted under the zoning code—RMC §

18.08.406(i)(1). Assuming, arguendo, the proposed development is permitted (based on an

interpretation of code rejected by the Planning Commission and City Council), then like the

municipality in Stratosphere, the City also has a discretionary review process for applications for

a tentative map and SUPs. Section III. B. In order for rights in a proposed development project

to vest, however, zoning or use approvals must not be subject to further governmental

discretionary action affecting project commencement. Stratosphere at 527, 96 P.3d at 760-61.

Accordingly, Lucas’ contention that he has a “vested right” to develop under the MGOD code is

unfounded. Pet. Opening Br. at 33. Instead, as in Stratosphere, it is within the “discretion and

good judgment” of the City to “determine what specific use should be permitted.” As discussed

above, substantial evidence supports the City’s exercise of discretion. See Section V. A.

In summary, the zoning designations in the MGOD do not convey upon Lucas any

“vested development rights,” and the record contains substantial evidence supporting the

decision to deny the Applications.

C. The relief sought by Lucas—a judicial order mandating the City grant the Application—is not available in this case.

A party seeking to challenge an agency’s decision may pursue such judicial review as is

available by statute or, if appropriate, equitable relief. Nev. Dep’t of Health and Human Servs. v.

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Samantha Inc., 133 Nev. 809, 811, 816, 407 P.3d 327, 329, 332 (2017) (noting that mandamus

and equitable relief might be available where there was no statutory right to judicial review); Kay

v. Nunez, 122 Nev. 1100, 1105, 146 P.3d 801, 805 (2006) (noting that mandamus is “generally

no longer appropriate” to challenge a local land use decision where a statutory right to judicial

review is available under NRS Chapter 278). In cases where a party invokes a court’s statutory

review authority, the “extent of the court’s jurisdiction is controlled by the statute conferring that

jurisdiction.” Tate v. Nev. Bd. of Med. Exam’rs, 131 Nev. 675, 678, 356 P.3d 506, 508 (2015)

(citing Washoe Cnty. v. Otto, 128 Nev. 424, 430, 282 P.3d 719, 724 (2012)). In such a case, the

“availability of a legal remedy” is dependent on the underlying judicial review statute.

Samantha Inc., 133 Nev. at 811, 407 P.3d at 328; see also Smith v. Board of Wildlife Comm’rs,

2020 WL 1972791 (Nev. April 23, 2020) (unpublished disposition) (affirming court’s denial of

mandamus where such relief was not provided by the applicable judicial review statute).

Lucas has brought this action pursuant to NRS 278.0233. Pet. Opening Br. at 2. Under

278.0233, a “person who has filed with the appropriate . . . local agency an application for a

permit” may commence an action for damages caused by one of three types of acts or omissions

specified in paragraphs (a), (b) and (c) of subsection 1 of that statute. Here, it appears that

Lucas’s action is premised on paragraph (a)—that the denial of the Application arbitrarily or

unlawfully imposed “requirements, limitations or conditions” on its property.4

As a threshold matter, Lucas cannot show the prerequisites for relief under NRS

278.0233. In denying the application, the City did not “impose” any “requirements, limitations

or conditions” that were “in excess” of the City’s statutorily derived powers. To the contrary,

each of the bases cited by the City—compatibility, availability of services, traffic—are expressly

required by statute and City ordinance. NRS 278.349; RMC § 18.02.102. And, as detailed

above, the City’s denial of the application was neither arbitrary nor unlawful.

4 Lucas does not allege any claims that could fall within paragraphs (b) or (c) of subsection 1 of NRS 278.0233. Namely, that the City’s denial imposed any unlawful “tax, fee or other monetary charge,” or that the City failed to timely process the underlying application.

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Moreover, even if the statutory prerequisites could be shown, the relief sought by Lucas

is not available under NRS 278.0233 (authorizing an “action against the agency to recover actual

damages”). Here, Lucas requests this Court “order” the City “to issue approval of the Tentative

Map and Special Use Permits.” Pet. Opening Br. at 36. The plain language of NRS 278.0233

forecloses the availability of such relief in this case. Tate, 131 Nev. at 678, 356 P.3d at 508;

Samantha Inc., 133 Nev. at 811, 407 P.3d at 328.

VI. CONCLUSION

For all the foregoing reasons, the Court should deny the petition for judicial review.

AFFIRMATION

The undersigned does hereby affirm that the preceding document filed in this court does

not contain the social security number of any person.

DATED: June 10, 2020.

KARL S. HALL Reno City Attorney By: /s/ William J. McKean

WILLIAM J. McKEAN Deputy City Attorney Nevada State Bar No. 6740 Post Office Box 1900 Reno, Nevada 89505 (775) 334-2050 Attorneys for City of Reno

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CERTIFICATE OF SERVICE

Pursuant to NRCP 5(b), I certify that I am an employee of the RENO CITY ATTORNEY'S

OFFICE, and that on this date, I am serving the foregoing document(s) on the party(s) set forth

below by:

Placing an original or true copy thereof in a sealed envelope placed for collection

and mailing in the United States Mail, at Reno, Nevada, postage prepaid, following ordinary business practices.

Personal delivery. X CM/ECF electronic service, addressed as follows:

Stephen C. Mollath, Esq. Prezant & Mollath 6560 SW McCarran Blvd., Suite A Reno, Nevada 89509 [email protected]

Facsimile (FAX). Federal Express or other overnight delivery. Reno/Carson Messenger Service. DATED this 10th day of June, 2020. /s/ Jeanette Sparks Jeanette Sparks Legal Assistant

Attorneys for City of Reno · Reno City Attorney P.O. Box 1900 Reno, NV 89505 Code: 1170 KARL S....

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