Coronet Homes, Inc. v. McKenzie

• Decision Date: 29 March 1968
• Docket Number: No. 5437,5437
• Citation: 84 Nev. 250,439 P.2d 219
• Parties: CORONET HOMES, INC., Appellant, v. J. C. McKENZIE, Howard F. McKissick, Sr., Jack B. Cunningham, Richard Streeter, and Leo F. Sauer, the duly elected Board of County Commissioners, County of Washoe, State of Nevada, Respondents.
• Court: Nevada Supreme Court

Page 219

439 P.2d 219

84 Nev. 250

CORONET HOMES, INC., Appellant, v. J. C. McKENZIE, Howard F. McKissick, Sr., Jack B Cunningham, Richard Streeter, and Leo F. Sauer the duly elected Board of County Commissioners, County of Washoe, State of Nevada, Respondents.

No. 5437.

Supreme Court of Nevada.

March 29, 1968.

Lohse & Lohse, Reno, for appellant.

William J. Raggio, Dist. Atty., Perry P. Burnett, Deputy Dist. Atty., Reno, for respondents.

OPINION

MOWBRAY, Justice.

This is an appeal from a judgment of the Second Judicial District Court, affirming a ruling of the Washoe County Board of County Commissioners in denying appellant's application for a Special Use Permit to vary the lot size requirements of the Density Zoning Provisions of Washoe County Land Use Ordinance, Article 5(E), Washoe County Ordinance No. 57.

The principal issues presented for our consideration are:

(1) Is Article 33(A) of Washoe County Ordinance No. 57 ¹ permissible under NRS 278.020 ²; and (2) Was the action of the Washoe County Board of County Commissioners in denying appellant's application for the Special Use Permit arbitrary and capricious.

Appellant Coronet Homes, Inc. applied to the Regional Planning Commission of Reno, Sparks and Washoe County for a Special Use Permit, Application No. SP--34--66W, to permit variation in lot size and yard requirements under the Density Zoning provisions of the Washoe County Land Use Ordinance, Article 5(E), Washoe County Ordinance No. 57. The property involved covered approximately 163 acres and is situated west of U.S. Highway 395 and north of Huffaker Lane in Washoe County. On June 9, 1966, applicant was advised that, at a regular meeting of the Regional Planning Commission, held on June 7, 1966, its request for a Special Use Permit for density zoning had been considered by the commission and denied, together with a supporting tentative plat of a proposed golf course within the subdivision.

On June 13, 1966, appellant gave notice of appeal to the Board of County Commissioners of Washoe County. The appeal was heard on June 27, 1966. Numerous persons appeared and spoke for and against appellant's proposal and, by unanimous vote, one commissioner abstaining, the appeal was denied.

Appellant filed on August 12, 1966, a complaint in the Second Judicial District Court, seeking approval of its tentative subdivision plat and application for a special use permit. Issues were joined and, by stipulation of the parties, the transscript and minutes of the hearing before the Board of County Commissioners, with all documents and exhibits presented to the board, were submitted to the district court for decision.

The district court on March 7, 1967, rendered its decision against appellant and, on July 17, 1967, findings of fact, conclusions of law and judgment were entered.

Appellant's challenge of Washoe County Ordinance No. 57 centers on the validity of Article 33 of the ordinance and, in particular, that part which provides that an applicant in seeking a special use permit must present evidence 'that the use in necessary to the public health, convenience, safety and welfare and for the promotion of the general good of the community.' The Board of County Commissioners interpreted this provision, and properly so, as placing the burden of proof on the appellant. Appellant urges that such a burden, as stated in Article 33(A) of the ordinance is not permissible under NRS 278.020 and, if so, is unconstitutional for it places an unreasonable burden on the applicant for the special use permit. We do not agree. On the contrary, NRS 278.020 is clear and unambiguous in empowering the counties of the state with the authority to regulate and restrict the improvement of land and to control the location and soundness of structures built on the land. The Density Zoning Provision of the Washoe County Land Use Ordinance, Washoe County Ordinance No. 57, ³ is precisely the sort of ordinance authorized by the Legislature under NRS 278.020.

'Bill No. 76

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. Forest Hills Borough Appeal, 409 Pa. 392, 187 A.2d 166 (1963); Colligan Zoning Case, 401 Pa. 125, 162 A.2d 652 (1960); Garbev Zoning Case, 385 Pa. 328, 122 A.2d 682 (1956); Baronoff v. Zoning Bd. of Adjustment etc., 385 Pa. 110, 122 A.2d 65 (1956). 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.

Zoning is a tool in the hands of governmental bodies which enables them to more effectively meet the demands of evolving and growing communities. It must not, and cannot, be used by those officials as an instrument by which they may shirk their responsibilities. Zoning is a means by which a government body and its citizens can plan and build for the future--it may not, however, be used as a means to deny the future.

The days are fast disappearing when the judiciary can look at a zoning ordinance and, with nearly as much confidence as a professional zoning expert, decide upon the merits of a zoning plan and its contribution to the health, safety, morals or general welfare of the community. Courts are becoming increasingly aware that they are neither super boards of adjustment nor planning commissions of last resort. Di Santo v. Zoning Bd. of Adjustment etc., 410 Pa. 331, 189 A.2d 135 (1963); Joseph B. Simon & Co. v. Zoning Bd. of Adjustment etc., 403 Pa. 176, 168 A.2d 317 (1961). Rather, the court acts as a judicial overseer, drawing the limits beyond which local regulation may not go, but loathing to interfere, within those limits, with the discretion of local governing bodies. Tidewater Oil Co. v. Poore, 395 Pa. 89, 149 A.2d 636 (1959).

The zoning power is one of the tools of government which, in order to be effective, must not be subjected to judicial interference unless clearly necessary. For this reason, a presumption of validity attaches to a zoning ordinance which imposes the burden to prove its invalidity upon the one who challenges it. Cleaver v. Bd. of Adjustment etc., 414 Pa. 367, 200 A.2d 408 (1964); Bilbar Consir. Co. v. Easttown Twp. Bd. of Adjustment, 393 Pa. 62, 141 A.2d 851 (1958).

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. Cleaver v. Bd. of Adjustment, supra. Such ordinances must bear a substantial relationship to those police power purposes. Glorioso Appeal, 413 Pa. 194, 196 A.2d 668 (1964); Sylvester v. Pittsburgh Zoning Bd. of Adjustment, 398 Pa. 216, 157 A.2d 174 (1959). 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. Peirce v. Zoning Bd. of Adjustment etc., 410 Pa. 262, 189 A.2d 138 (1963).

There is no doubt that zoning for density is a legitimate exercise of the police power. Bilbar Constr. Co. v. Easttown Twp. Bd. of Adjustment, supra; Volpe Appeal, 384 Pa. 374, 121 A.2d 97 (1956). The cluster zoning of approximately 148 homes about a 103 acre golf course, as shown by the applicant's tentative subdivision plat, contrasts sharply with the character of the residential homes built on 1 and 2 acre lots surrounding applicant's property. The clustering of the smaller lots about the proposed golf course elicited strong objections of those living in the neighboring area, as reported in the transcript of the hearing before the Board of County Commissioners. And understandably so. Zoning laws are passed in the interest of the public welfare and the benefit accrues not only to the municipality but also to the neighboring land owners. Roseberg v. Mehl, 37 Ohio App. 95, 174 N.E. 152 (1930); Pritz v. Messer, 112 Ohio St. 628, 149 N.E. 30 (1925). 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.

Aside from the individual property owner's interest in relying on the zoning regulation of the area, there is a legitimate public interest involved in density zoning which affects the 'health, safety, morals and general welfare of the community.' The relative advantages of a one acre lot over a one-half acre lot are easy to comprehend. Similarly, a two acre lot has advantages over a...