City of Reno v. Harris

• Decision Date: 25 May 1995
• Docket Number: No. 23679,23679
• Citation: 111 Nev. 672,895 P.2d 663
• Parties: The CITY OF RENO, Appellant, v. Richard HARRIS and Newlands Neighborhood Association, Inc., Respondents.
• Court: Nevada Supreme Court

Page 663

895 P.2d 663

111 Nev. 672

The CITY OF RENO, Appellant, v. Richard HARRIS and Newlands Neighborhood Association, Inc. Respondents.

No. 23679.

Supreme Court of Nevada.

May 25, 1995.

Patricia A. Lynch, City Atty., and Madelyn Shipman, Chief Deputy City Atty., Reno, for appellant.

Prezant, Mollath & Costello, Reno, for respondent Richard Harris.

Sinai & Schroeder, Reno, for respondent Newlands Neighborhood Ass'n, Inc.

OPINION

PER CURIAM:

The property involved in this dispute (Hawkins House) is located in a residential area and was operated as a museum for several years by virtue of a special use permit granted in accordance with a zoning amendment designating the property a historic landmark in 1978. In 1992, an application was made by Don and Melinda Gustin (the Gustins), to amend the use permit to allow for limited office use. The City of Reno Board of Adjustment (the Board) recommended against approval; the Reno City Council (Reno Council) reversed the recommendation and approved the application for the special use permit.

This is an appeal from an order granting respondent Richard Harris (Harris) and intervenor Newlands Neighborhood Association (NNA) (collectively respondents) a peremptory writ of mandamus overturning the granting of the special use permit by the Reno Council. Respondents contended professional office use is not allowed under the Newlands Neighborhood Master Plan (NN Plan) which they assert is master-planned multi-family residential. The district court agreed with respondents and held that the issuance of the special use permit was not in conformance with the City of Reno's master plan and was thus unlawful and void. The City of Reno (Reno) appeals the district court order.

FACTS

On November 27, 1978, the Reno Council unanimously approved a special use permit that allowed Robert Hawkins (Hawkins) to operate a public art museum at 549 Court Street (Hawkins House) in an existing single-family dwelling. The property was zoned "R-1" and "R-1a" (single family residential) which permitted the property to be used as a museum through a special use permit processed in accordance with a zoning amendment designating the property as "HL" (historic or landmark overlay district). ¹ The property is presently zoned SFR-6/HL (single family residential-6,000 square foot minimum with historical or landmark overlay district).

Hawkins subsequently conveyed Hawkins House to Nevada Art Gallery, Inc., which operated the Sierra Nevada Museum of Art (museum) until December of 1989. The operators of the museum later abandoned their use of the property, which was never again used as a museum. In June of 1990, the museum conveyed Hawkins House to Earl Smith (Smith). The property has remained vacant since Smith purchased the property.

The Gustins subsequently acquired an option to purchase the property. In March of 1992, the Gustins filed an application with the Board for an amendment to the special use permit to allow conversion of the property from the permitted museum use to limited office use. The Gustins' application for the approximately 7,000 square foot property proposed a mixed use consisting of Mr. Gustin's advertising agency, Mrs. Gustin's franchise muffin business, and rental to another party of 1,000 to 1,500 square feet. Gustin's The chairperson of the State Historical Preservation and Archeology Advisory Board indicated that the building will be in jeopardy if allowed to remain vacant, and restoration to a single-family residential home was cost prohibitive. The chairperson operated the museum at the Hawkins House for nine years and supported the proposition that the proposed usage would generate much lower traffic count than did the museum.

representative stated that Gustin intended to preserve the existing structure, replace the kitchen, and plant mature trees along the west property line. He asserted that the proposed [111 Nev. 675] limited office use was less intense than the previously approved museum use. To support his conclusion, he said that the limited office use would generate less than 120 trips per day to the property, compared to the estimated 250 trips generated by the museum use. He also stated that the area east of the property is no longer residential and that office use dominates this area.

A representative of the NNA objected to the project and cited what he believed would be increased traffic. Others testified the NN Plan, which permitted multi-family and office use, was to be a buffer to keep office use from encroaching on the single-family use. The NN Plan had been adopted by the Reno Council in 1988 and encompassed an area in northeast Reno west of Arlington Avenue and south of the Truckee River. On May 13, 1992, the Gustin's application was denied by the Board.

Gustin appealed, and a hearing was held before the Reno Council. At the public hearing, 220 individuals opposed the granting of the special use permit and twenty-four were in favor. A City of Reno associate planner testified that he had thoroughly analyzed the application and recommended approval of the permit subject to certain conditions. He noted that the property was located in the historic overlay zone which allows use other than single-family residential in order to preserve historic buildings. He further concluded that the proposed use was consistent with the NN Plan, and the office portion of the mixed Land Use/Transportation Guide and the Reno policy plan also permitted such use. The Reno Council reversed the Board's denial by a 4-3 vote and approved the amendment to the special use permit.

On June 18, 1992, respondent Harris, the owner of the property located at One Elm Court, adjacent to Hawkins House, filed an "Application for Writ of Mandamus, Petition for Review (NRS 278.0235) or in the Alternative, Complaint for Declaratory Relief" (petition) in the district court. The petition alleged, inter alia, that: (1) the subject property was not master-planned under the NN Plan to allow for office use; (2) approval of the office use for the property was not in conformance with the master plan ordinance of the City of Reno; and (3) Reno's approval of the amendment was arbitrary and capricious and not supported by substantial evidence. On June 23, 1992, an order was entered directing an alternative writ of mandamus be issued, commanding the City of Reno to rescind and cancel the special use permit or show cause why it had not done so. A "show cause" date was set by agreement of the parties for July 17, 1992. NNA filed a motion for joinder which was stipulated to by the City of Reno and Harris.

After hearing arguments of counsel, the district judge inspected the subject property and the surrounding neighborhood without notice to either party. On August 26, 1992, the district court entered an order voiding the amendment to the special use permit and declaring that the City of Reno's approval of the amendment was unlawful. The City of Reno appeals from that order.

Whether the City of Reno is an Aggrieved Party

Harris filed a motion to dismiss with this court on the ground that the City of Reno is not an "aggrieved party" and thus has no statutory standing to appeal the decision of the district court.

Rule 3A(a) of the Nevada Rules of Appellate Procedure provides, in pertinent part:

(a) Aggrieved Party May Appeal. Any appealable judgment or order in a civil action or proceeding may be appealed from and reviewed as prescribed by these rules, and not otherwise. Any party aggrieved may appeal ... and the Supreme Court An appeal from a district court decision entered upon judicial review of an agency decision is governed by NRS 233B.150, which provides: "An aggrieved party may obtain a review of any final judgment of the district court by appeal to the supreme court. The appeal shall be taken as in other civil cases." Although this court has not specifically addressed this issue, we have previously allowed the Reno Council to appeal such a determination. See City Council, Reno v. Travelers Hotel, 100 Nev. 436, 683 P.2d 960 (1984). This court has defined an aggrieved party as one whose "personal right or right of property is adversely and substantially affected." Estate of Hughes v. First Nat'l Bank, 96 Nev. 178, 180, 605 P.2d 1149, 1150 (1980); see also Eikelberger v. Nev. St. Bd. of Accountancy, 91 Nev. 98, 531 P.2d 853 (1975).

may consider errors of law and the sufficiency of the evidence....

Most courts considering the issue have held a municipality may be an aggrieved person within the meaning of statutes authorizing such a person to institute proceedings to review a decision of a board of adjustment. See Burley v. McCaslin Lumber Co., 693 P.2d 1108 (Id. Ct.App.1984); Crosby v. Belgrade, 562 A.2d 1228 (Me.1989); Randolph Vine Assoc. v. Zoning Bd. of Adjustment, 132 Pa.Cmwlth. 452, 573 A.2d 255 (1990). We agree with this authority and believe a municipality has a vested interest in requiring compliance with its land use decisions. Accordingly, the City of Reno was an aggrieved party and had standing to challenge the district court order.

Standard of Review

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.

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. See Mack v....