County of Clark v. Doumani

• Decision Date: 22 January 1998
• Docket Number: No. 26126,26126
• Citation: County of Clark v. Doumani, 114 Nev. 46, 952 P.2d 13 (Nev. 1998)
• Parties: COUNTY OF CLARK, Nevada, Jay Bingham, Paul J. Christensen, Karen Hayes, Yvonne Atkinson Gates, Don Schlesinger, Thalia Dondero, Bruce Woodbury, County Commissioners, Appellants, v. Fred M. DOUMANI, Sr., Cindy Doumani, Fred M. Doumani, Jr., and Ronald M. Doumani, Respondents.
• Court: Nevada Supreme Court

Page 13

952 P.2d 13

114 Nev. 46

COUNTY OF CLARK, Nevada, Jay Bingham, Paul J. ChristensenKaren Hayes, Yvonne Atkinson Gates, Don Schlesinger, Thalia Dondero, Bruce Woodbury, County Commissioners, Appellants, v.Fred M. DOUMANI, Sr., Cindy Doumani, Fred M. Doumani, Jr. and Ronald M. Doumani, Respondents.

No. 26126.

Supreme Court of Nevada.

Jan. 22, 1998.

Rehearing Denied March 23, 1998.

Stewart L. Bell, District Attorney, Johnnie B. Rawlinson, Chief Deputy District Attorney, Clark County, for Appellants.

Nitz, Walton & Hammer, Las Vegas, for Respondents.

OPINION

PER CURIAM:

In 1985, respondents bought approximately 9.34 acres of real property in Clark County.On November 19, 1991, a master plan for developing that portion of Clark County was adopted by the Clark County Board of Commissioners("the Board").Under the master plan, the planned use for respondents' property was designated R-2 (Medium Density Residential District), which permits construction of up to eighteen dwelling units per gross acre.Currently, respondents' property is zoned R-E (Rural Estates Residential District).R-E zoning limits development to two dwelling units per gross acre and minimum lot sizes of 20,000 square feet per family dwelling.Clark County Code§ 29.10.050.In early 1993, respondents applied to the Board for a zone change from R-E to R-2 and submitted a plan to build twenty four-plex townhouses on the property, a total of eighty units with a density of approximately 8.56 dwelling units per gross acre.Respondents also submitted applications for a conditional use permit and variances necessary to accommodate the proposed plan.At that time, the property to the north of respondents' parcel contained an apartment complex with a density of approximately eighteen units per acre, and the property to the east contained an apartment complex with a density of approximately fourteen units per acre.The property to the south of respondents' parcel contained single family residences at a density of four units per acre, and the property to the west was zoned R-E.

On July 7, 1993, respondents' petition was heard by the Board.At the hearing, the Board's zoning staff recommended approval of the project, with the exception of three of the variance requests, noting that the application was for less than half of the density allowed under the master plan.The zoning staff pointed out, however, that the high school and middle schools in the area were already over capacity and that most of the property in the area has been developed under R-E zoning as rural estate homes.The Town Board recommended denial of the application based on traffic and neighborhood protests.The Board received fifteen letters and a petition containing 106 signatures opposing the project, as well as a petition containing 93 signatures of nearby residents in support of the project.

Five homeowners testified at the hearing that they opposed the project because it would decrease their home values and because they enjoy the current rural atmosphere.Respondents testified that the project was in conformity with the use of the surrounding properties.At the conclusion of the hearing, County Commissioner Bruce Woodbury stated that he opposed the application because he felt that the proposed use would be incompatible with the surrounding neighborhood and that single-family residences would be the only appropriate use for the property.At the conclusion of Woodbury's statements, the Board voted unanimously to deny all of respondents' applications for the proposed project.

Respondents' representative received written notice of the Board's decision by letter dated July 16, 1993.On August 9, 1993, respondents filed a complaint and petition for a writ of mandamus to obtain judicial review of the Board's denial of rezoning, the conditional use permit, and the variances necessary for the development of the project.

On January 20, 1994, appellants filed a motion to dismiss the complaint and petition for a writ, contending that respondents' action was barred by the twenty-five day statute of limitations set forth in NRS 278.0235.Appellants asserted that the Board's final decision was made on July 7, 1993, the date of the hearing; thus, respondents' August 9, 1993 complaint and petition, filed 33 days later, was untimely.Respondents opposed the motion, contending that the complaint and petition was timely filed within 25 days of the written notice of the decision mailed to respondents' representative on July 16, 1993.On March 3, 1994, the district court entered an order denying appellants' motion to dismiss, concluding that the application of the statute of limitations for actions brought under NRS 278.0235 is ambiguous or unclear, but that no evidence had been presented to show that the statutory period ran before respondents' complaint and petition was filed.¹

Respondents filed an amended complaint and application for a writ of mandamus on March 23, 1994, and a petition for the issuance of a peremptory writ of mandamus on April 25, 1994.Respondents asserted that the Board's denial of respondents' applications for the project was unsupported by substantial evidence in the record, and thus constituted an abuse of discretion.

On May 23, 1994, the district court conducted a hearing on respondents' petition.Subsequently, on June 21, 1994, the district court issued an order granting respondents' petition for a writ of mandamus.The district court found that the zone change and conditional use permit are in complete harmony with applicable provisions of the master plan, as approved and adopted by the Board on November 19, 1991.The district court further found that some of the opposition to the project was based on the misunderstanding that the project would include 320 units, rather than 80 units.

The district court concluded that the master plan establishes a standard which is entitled to deference and carries a presumption of applicability and that no evidence had been presented to show that the project would threaten the health, safety, morals or general welfare of the county's residents.The district court further concluded that the Board's denial of the zone change and conditional use permit (1) was unsupported by substantial evidence and resulted in an unreasonable, arbitrary and capricious deprivation of a legitimate use of respondents' property; (2) was an abuse of discretion because it failed to give the master plan the deference and presumption of applicability to which it was entitled; (3) had no substantial relationship to the public health, safety, morals and/or general welfare; (4) was inconsistent, given the zoning and uses that exist on land to the north and east; (5) was an unnecessary and unreasonable interference with respondents' private business and lawful occupations; and (6) and was an attempt by the Board to implement an inappropriate, de facto amendment to the master plan.

Accordingly, the district court issued a peremptory writ of mandamus requiring appellants to approve respondents' applications for rezoning and a conditional use permit, and remanding the application for variances to the Board for reconsideration in light of the district court's decision.This appeal followed.

Whether respondents' action was timely filed pursuant to NRS 278.0235.

Appellants contend that respondents' complaint and petition challenging the Board's decision was untimely filed pursuant to NRS 278.0235 because it was filed thirty-three days after the July 7, 1993 hearing.Appellants contend that this court's interpretation of an analogous statute in League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 93 Nev. 270, 563 P.2d 582(1977), indicates that judicial review must be sought within 25 days of the hearing.

NRS 278.0235 provides in pertinent part:

No action or proceeding may be commenced for the purpose of seeking judicial relief or review from or with respect to any final action, decision or order of any governing body, commission or board ... unless the action or proceeding is commenced within 25 days after the date of filing of notice of the final action, decision or order with the clerk or secretary of the governing body, commission or board.

This court has not previously considered what constitutes "notice" of a board's decision for purposes of triggering the twenty-five day statute of limitations under NRS 278.0235.In League to Save Lake Tahoe, this court analyzed what constitutes a "final action" under former NRS 278.027(providing for judicial review of grants or denials of special use permits or variances).Former NRS 278.027 provided that judicial relief with respect to a final action of any governing body must be commenced "within 25 days from the date of the filing of notice of such final action."This court stated that "[i]f agency review ... does not occur, then the action of [the county] is the 'final action' and judicial review, if desired, must be sought within 25 days thereafter."Id. at 274, 563 P.2d at 584.This statement suggests that final action and notice may be concurrent, but that issue was not squarely before the court.

Under the statute applicable in this case and the statute applicable in League to Save Lake Tahoe, the legislature chose to specify that the limitations period runs from the date that notice of the final action is filed, rather than from the action itself.This suggests that something more than the decision itself is required; otherwise, such language is superfluous."No part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly be avoided."Paramount Ins. v. Rayson & Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533(1970).We therefore conclude that the limitation period does not begin to run when a final decision is rendered.Rather, the limitation period begins to run only when notice of the final decision is filed.To the extent...