Gypsum Resources, LLC v. Masto

• Decision Date: 24 November 2009
• Docket Number: No. 2:05-CV-00583-RCJ-LRL.,2:05-CV-00583-RCJ-LRL.
• Citation: 672 F.Supp.2d 1127
• Parties: GYPSUM RESOURCES, LLC, Plaintiff, v. Catherine Cortez MASTO et al., Defendants.
• Court: U.S. District Court — District of Nevada

672 F.Supp.2d 1127

GYPSUM RESOURCES, LLC, Plaintiff, v. Catherine Cortez MASTO et al., Defendants.

No. 2:05-CV-00583-RCJ-LRL.

United States District Court, D. Nevada.

November 24, 2009.

Dinesh R. Badkar, Edward G. Burg, George M. Soneff, Manatt, Phelps & Phillips, LLP, Los Angeles, CA, James H. Walton, William O. Nitz, Nitz, Walton, & Heaton, Ltd., Las Vegas, NV, for Plaintiff.

Robert T. Warhola, II, Clark County District Attorney's Office, Civil Division, Las Vegas, NV, Bryan L. Stockton, Nevada Attorney General, Carson City, NV, for Defendants.

ORDER

ROBERT C. JONES, District Judge.

Plaintiff in this case is property owner Gypsum Resources, LLC ("Gypsum"), a Nevada limited liability company. Defendants are Clark County District Attorney David Roger, the County of Clark (the "County"), the Board of County Commissioners of the County of Clark (the "Board"), (collectively, the "County Defendants"), and Nevada Attorney General Catherine Cortez Masto. Plaintiff sued Defendants, asking the Court to declare Nevada Senate Bill No. 358 ("SB 358") and Clark County Ordinance No. 2914 ("CCO 2914") unconstitutional under the United States Constitution and the Nevada Constitution. (# 1). Pending before the Court are three motions. The first motion is Plaintiff's Motion for Summary Judgment (# 42) on Causes of Action Four and Five. The County Defendants have filed a Response (# 55), Attorney General Masto has filed a Response (# 56), and Plaintiff has filed a Reply (# 67). The second and third motions are the County Defendants' Motion for Summary Judgment (#43) and Errata (# 50) to that motion, and Attorney General Masto's Motion for Summary Judgment (# 44). Plaintiff has filed a Response (# 57), Declarations and Exhibits (#58), and Request for Judicial Notice (# 59). Attorney General Masto has filed a Reply and Amended Reply (# 64, # 66), and the County Defendants have filed a Reply (# 65).

For the reasons given herein, the court grants Plaintiff's Motion for Summary Judgment (#42) as to the Fourth and Fifth Causes of Action, denies Defendants' Motions for Summary Judgment (#43, # 44) as to the First Cause of Action, and grants Defendants' Motions for Summary Judgment (#43, #44) as to the Second Cause of Action.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff owns real property (the "Gypsum Mine Property" or the "Property"), which consists of 2400 acres that abut and, in some locations include, portions of the Red Rock Canyon National Conservation Area ("RRCNCA"). The area was mined for gypsum in the 1920s and later, and it bears the scars of that activity. The land is located in Clark County approximately twelve miles west of the Las Vegas Strip and is zoned as RU (rural), which allows for the development of residential housing of one home on every two acres. James Rhodes, on behalf of Gypsum, contracted to purchase the Property in September 2002 for over $50 million, with the intent to develop it for both residential and commercial uses. The purchase was finalized in March 2003, and the Property was subsequently transferred to Plaintiff.

In 2003, the Gypsum Mine Property drew the attention of local, state, and federal lawmakers, who discussed the possibility of acquiring the property to expand the RRCNCA. However, the Bureau of Land Management ("BLM") did not want to take responsibility for the Gypsum Mine Property due to its damaged condition. Clark County passed a resolution on May 6, 2003, supporting the fair market acquisition of the lands and transfer of title from the County to BLM.

In the meantime, SB 358 was sponsored by State Senators Titus, Wiener, Care, Schneider, and Coffin, see 2003 Nev. Stat. 595, to limit development, subdivision regulation, and rezoning in an area (the "Adjacent Areas") that includes the Gypsum Mine Property. SB 358 was passed by the Nevada Legislature and signed into law by Governor Kenny Guinn on May 19, 2003. It amended several chapters of the Nevada Revised Statutes. Section 11 gave SB 358 an effective date of July 1, 2003. Id. at 598. The Act, in relevant part, prohibits local governments from approving a land use application that would increase the number of residential dwelling units allowed by existing zoning regulations within the Adjacent Areas, unless a trade of development credits was involved:

With respect to adjacent lands, a local government:

1. Shall not, in regulating the use of those lands:

(a) Increase the number of residential dwelling units allowed by zoning regulations in existence on the effective date of this act, unless such an increase can be accomplished, within a given area, by the trading of development credits or another mechanism that allows a greater number of residential dwelling units to be constructed in that area without increasing the overall density of residential dwelling units in that area;

SB 358 § 8 (adding this text to Chapter 639, Statutes of Nevada, 1993 Nev. Stat. 2673, as § 4.3(1)(a)). The Act also prohibits the County from establishing new, non-residential zoning districts on the affected lands or expanding the size of existing non-residential zoning districts:

With respect to adjacent lands, a local government:

1. Shall not, in regulating the use of those lands:

. . . .

(b) Establish any new nonresidential zoning districts, other than for public facilities; or

(c) Expand the size of any nonresidential zoning district in existence on the effective date of this act, other than for public facilities.

Id. (adding this text to Chapter 639, Statutes of Nevada, 1993 Nev. Stat. 2673, as § 4.3(1)(b)-(c)).

Shortly thereafter, on May 21, 2003, the Board adopted CCO 2914, which imposes additional design standards and density restrictions for development within and adjacent to the RRCNCA. Virtually identical to SB 358 in many ways, CCO 2914 states that the County will not accept any land use applications that would (1) increase residential densities unless a trade of development credits is involved, (2) establish new non-residential zoning districts, or (3) expand the size of existing non-residential zoning districts on the affected lands, including Plaintiff's Property.

Plaintiff contends that the local and state officials purposefully "sought to orchestrate a program that would eventually force Rhodes to sell the Gypsum Mine Property to the State at a price that was artificially depressed by a coordinated governmental effort." (# 1 at 12, ¶ 24). Plaintiff believes his Property was singled out to create a buffer adjacent to the RRCNCA and that this is in conflict with the federal law creating the RRCNCA because the federal statute specifically stated that a buffer zone around the conservation area was unnecessary and unintended. See 16 U.S.C. § 460ccc-9.¹

Plaintiff filed suit for declaratory and injunctive relief under the Civil Rights Act of 1991, 42 U.S.C. § 1983, and the Nevada Constitution against two groups of defendants: (1) the "State Defendants," including former Governor Kenny Guinn and former Nevada Attorney General Brian Sandoval; and (2) the County Defendants.² Plaintiff alleges that SB 358 and CCO 2914 are unconstitutional under the Fourteenth Amendment. Plaintiff also alleges state constitutional and statutory violations. Plaintiff seeks a declaration that these provisions are unconstitutional and an injunction against their enforcement. Plaintiff brought Equal Protection (Cause of Action 1), Due Process (Cause of Action 2), and Takings (Cause of Action 3) claims under 42 U.S.C. § 1983, as well as claims for violation of Sections 20 and 21 of Article 4 of the Nevada Constitution (Causes of Action 4 and 5) under 28 U.S.C. § 1367. Cause of Action 3 and the procedural due process claim of Cause of Action 2 have been dismissed. (# 29 at 13:12).

II. SUMMARY JUDGMENT STANDARD

The Federal Rules of Civil Procedure provide for summary adjudication when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In a summary judgment posture, the Court must consider the parties' respective burdens. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir.2000) (citations omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24, 106 S.Ct. 2548. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

If the moving party meets its initial responsibility, the burden then...