Garvin v. NINTH DIST. COURT EX REL. DOUGLAS
| Citation | 59 P.3d 1180,118 Nev. 749 |
| Decision Date | 17 December 2002 |
| Docket Number | No. 40144.,40144. |
| Parties | John GARVIN, an Individual; Judy Sturgis, an Individual; Gary Pyle, an Individual; James Slade, an Individual; and Patricia A. McKay-Timm, an Individual, Petitioners, v. The NINTH JUDICIAL DISTRICT COURT of The State of Nevada, in and for the COUNTY OF DOUGLAS, and the Honorable David R. Gamble, District Judge, Respondents, and Nevada Northwest, LLC, a Limited Liability Company; Douglas County, a Political Subdivision of the State of Nevada; Douglas County Board of Commissioners; and Barbara Reed, in Her Capacity as the Douglas County Clerk, Real Parties in Interest. |
| Court | Supreme Court of Nevada |
Brooke Shaw Zumpft, Minden; Patricia D. Cafferata, Reno, for Petitioners.
Scott W. Doyle, District Attorney, Douglas County, for Real Parties in Interest Douglas County, Douglas County Board of County Commissioners, and Douglas County Clerk.
Scarpello, Huss & Oshinski and Ryan J. Earl, Carson City, for Real Party in Interest Nevada Northwest.
Before the Court En Banc.
This case involves a sustainable growth initiative measure, which the Douglas County Board of County Commissioners approved for placement on the November 2002 ballot. The initiative proposed a limit on the number of new dwelling units that could be built annually in the Carson Valley area of Douglas County. The district court enjoined the initiative's placement on the ballot, based primarily on its conclusion that any initiative concerning a zoning matter is prohibited by Forman v. Eagle Thrifty Drugs & Markets.1 We stayed the district court's order, and the measure was placed on the ballot as Douglas County Question Number 4; it passed.2
We have revisited Forman, and we conclude that a substantial portion of its foundation is no longer sound. Nevada's Constitution reserves to the people the power to propose, by initiative petition, statutes and amendments to statutes and the constitution, and to enact or reject them at the polls, and further reserves the initiative and referendum powers to the registered voters of each county and municipality as to all local, special and municipal legislation of every kind in and for the county or municipality.3 We reaffirm Forman's holding that the initiative and referendum powers reserved to the people, although broad, are limited to legislation and do not extend to administrative matters; however, we overrule Forman to the extent it holds that: (1) the initiative power does not extend to the zoning processes of counties and cities, or other matters legislatively delegated to local governments; (2) due process requirements of notice and hearing apply to general zoning legislation by initiative; and (3) all changes to established zoning policies are administrative in nature. Finally, we conclude that the sustainable growth initiative is legislative in nature and was properly submitted to Douglas County voters on November 5, 2002.
Douglas County created a Planning Commission in compliance with NRS 278.030, and the Planning Commission prepared and adopted a comprehensive long-term master plan for the county's physical development in compliance with NRS 278.150. In April 1996, the Douglas County Board of County Commissioners amended and adopted the master plan by resolution. The master plan contains a growth management element, whose purpose is to establish policies and systems to manage orderly community growth. This section anticipates, but does not establish, a building permit allocation system:
In addition to directing growth to the places where it is most appropriate and most consistent with the Land Use Element, the County should control the rate at which growth occurs. Uncontrolled growth rates make it difficult for the County to keep up with expanded needs for roads, water, sewer, and other facilities. Unpredictable growth also makes it difficult for the County to plan for the best use of its limited groundwater resources. In order to protect both the County's financial and natural resources, the County should adopt a building permit allocation system covering residential uses. The allocation system will allow for a predictable growth rate, which provides for an averaging of peaks and valleys of growth over time. This provides for an orderly basis to plan and fund infrastructure and protect the groundwater resource. The residential permit allocation system should be tied to both the capital improvements program and to hydrological studies. Therefore, a building permit allocation system should be designed to maintain an average rate over time.
This section further states that the permit allocation system should not be implemented until after the County adopts a capital improvements plan and growth rates indicate a need for an allocation system, and that growth rates should be set in conjunction with the budget process. In addition, this section lists issues to be addressed in the Development Code, which would codify the allocation system.
Petitioners are five individual Douglas County residents who circulated an initiative petition proposing as follows:
The initiative petition was submitted to Barbara Reed, Douglas County Clerk-Treasurer and elections officer, on June 10, 2002, and certified as legally sufficient by her on June 27, 2002. Although the Board of County Commissioners declined to adopt the building cap, the Board approved the initiative's placement on the 2002 general election ballot as Douglas County Question Number 4.
On July 24, 2002, Nevada Northwest LLC filed in the Ninth Judicial District Court a petition for a writ of mandamus or, in the alternative, complaint for declaratory and injunctive relief to keep the initiative off the ballot. Nevada Northwest owns real property in Douglas County, for which it received from the Douglas County Commissioners, in December 2001, specific plan approval for a development with 376 new dwellings.
The matter proceeded to a bench trial on August 14, 2002. The district court concluded that the initiative is administrative, not legislative, and enjoined its placement on the ballot. The court's decision rested primarily on Forman's holding that, when a zoning policy has been established and the process for making zoning changes has been committed to local planning commissions and governing boards, as is the case in Nevada, zoning changes are administrative and not referable.4 The court also concluded that the sustainable growth initiative is administrative rather than legislative in nature under the test stated in Forman and recently restated in Glover v. Concerned Citizens for Fuji Park.5 In its decision, however, the district court expressed concern that Forman's analysis resembles legislative preemption analysis, and questioned its validity in the context of the state constitution's reservation of the initiative and referendum power to the people. We agree that Forman's reasoning needs reconsideration.
Forman involved two different zoning proposals and the process of referendum as well as initiative. Referendum is the electorate's power to approve or disapprove already-enacted legislation, while initiative is the electorate's power to directly enact legislation by popular vote. In 1967, Eagle Thrifty Drugs sought a zoning change for a three and one-half acre parcel it owned in a Reno residential neighborhood so that it could build a supermarket. The city planning commission denied Eagle's application, but on appeal the Reno City Council granted the application in Ordinance No. 1880.6
William Forman and others then instituted a class action against Eagle and the City. The district court found that the City Council acted improperly by enacting the ordinance, and in August 1970 granted Forman's motion for summary judgment on the cause of action seeking to restrain construction of a supermarket on the rezoned parcel. Before the summary judgment was formally entered in October 1970, however, Reno residents approved Ordinance No. 1880 in a referendum election. Reno residents also adopted by initiative a Reno zoning law amendment that prohibited industrial or commercial property use within 300 feet of property used for elementary or junior high school purposes. Since the Eagle property rezoned by Ordinance No. 1880 was located within 300 feet of an elementary school, the two measures clearly conflicted.7
After the election, the district court reopened the class action on Eagle's motion, and vacated and set aside its October 1970 summary judgment. All other causes of action, which are not identified in the opinion, had been dismissed, and the court granted summary judgment in Eagle's favor on the sole remaining cause of action, which sought to restrain the supermarket's construction. Forman was given leave to file a supplemental complaint attacking the referendum ordinance. After trial, the district court entered final judgment in Eagle's favor and affirmed the zoning change.8 The court found that the zoning change permitting a supermarket, which was enacted by Ordinance No. 1880 and approved by referendum, was not inconsistent with the City's comprehensive planning objectives, would not materially affect the land use district's residential character and was not an arbitrary or unreasonable exercise of the police power.9
On appeal, the class action plaintiffs argued: (1) that City Ordinance No. 1880, which rezoned the Eagle parcel, was void and its subsequent approval by referendum was a nullity; and (2) that the initiative measure, which prohibited commercial use of...
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