Kay v. Nunez
| Decision Date | 22 November 2006 |
| Docket Number | No. 44090.,44090. |
| Citation | 146 P.3d 801 |
| Parties | James A. KAY, Jr., Appellant, v. Oscar NUNEZ; and Clark County Board of Commissioners, A Political Subdivision of the State of Nevada, Respondents. |
| Court | Nevada Supreme Court |
Law Office of Garry L. Hayes and Garry L. Hayes and Martin L. Welsh, Henderson, for Appellant.
David J. Roger, District Attorney, and Robert T. Warhola, Deputy District Attorney, Clark County, for Respondent Clark County Board of Commissioners.
Goodman Brown & Premsrirut and David T. Brown and Eric A. Goodman, Las Vegas, for Respondent Oscar Nunez.
Before MAUPIN, GIBBONS and HARDESTY, JJ.
In this appeal, we clarify the procedure by which a district court reviews local zoning and land use planning decisions. By statute, an aggrieved party's challenge to zoning and planning decisions must now be presented by a petition for judicial review, rather than by a petition for a writ of mandamus.
Further, we decide whether the Clark County Board of Commissioners could properly enact zoning ordinances that allow the Clark County Planning Commission to waive certain otherwise required development standards. The Board is not constrained by a statute that limits variances to certain situations, as that statute applies only to boards of adjustments. And, even though NRS Chapter 278 does not expressly grant the Board the power to enact a waiver of development standards procedure, we conclude that NRS 278.315(1) unambiguously grants the Board the authority to enact an ordinance that gives the Planning Commission the power to grant special exceptions. The waiver of development standards procedure at issue in this appeal is one such exception.
Respondent Oscar Nunez owns property just east of downtown Las Vegas, Nevada. Nunez proposed the development of a single, mixed-use 16-story building to replace three existing residential buildings on the property. The property's zoning classification hindered this proposal because the property was zoned "H-1" (limited resort and apartment use). H-1 zoning allows for a maximum of 50 dwelling units per acre; Nunez's proposal, however, contained more than 130 dwelling units per acre.
Nunez sought to cure this impediment by applying for a nonconforming zone change to a "U-V" designation (urban village-mixed use) because the U-V designation is not limited by unit density restrictions. Additionally, the U-V designation allows the developer to combine residential, commercial, recreational, and open space components into a single urban center. Although not limited by unit density restrictions, the Clark County Code requires that the following U-V development standards be met: (1) buildings over 100 feet tall require a special use permit, and, in any case, no building may encroach into airport airspace;1 (2) a height/ratio setback of 50 feet;2 (3) 10 percent of the gross building floor area must be reserved for recreational space;3 (4) 5 percent of the residential floor area must constitute open space;4 and (5) a certain number of parking spaces must be constructed.5
Because his proposed mixed-use building did not comply with these standards, however, Nunez requested that the U-V development standards be waived to permit him to construct the building under the following requirements: (1) a 185-foot-high building that encroaches into airport airspace; (2) a height/ratio setback of 10 feet; (3) a recreational area of only 16,255 square feet, instead of the minimum 39,393 square feet that was normally required; (4) an open space of only 9,163 square feet, instead of the minimum 17,634 square feet normally required; and (5) on-site parking of only 605 spaces instead of the otherwise required 644 spaces.
Both the Clark County Planning Commission Staff and the Paradise Town Board recommended approving Nunez's application.6 After a public hearing, the Clark County Planning Commission unanimously approved Nunez's application.
Appellant James Kay, a resident of nearby Park Towers, administratively appealed the Planning Commission's decision to the Board. Kay appeared at the Board's subsequent public hearing through counsel to object to any waivers of existing development standards. The Board voted to approve the application and waive the Clark County Code's U-V development standards as requested by Nunez.
Kay then filed petitions for judicial review and a writ of mandamus with the district court, contesting the Board's authority to waive the U-V development standards contained in the Clark County Code. The district court entered an order denying both petitions. Kay now appeals.7
In this section, we first address the proper mechanism for seeking review of local zoning and planning decisions in the district court, which is through a petition for judicial review. We next consider a threshold issue raised by respondents: whether Kay had standing to seek judicial review in the district court. As the Board conceded that Kay had standing to administratively challenge the Planning Commission's decision, Kay necessarily had standing to seek judicial review. Finally, we discuss whether the Board appropriately waived its development standards with respect to Nunez's application. Since the Board is not constrained by statute as to what circumstances may warrant a variance and because the Board has properly enacted an ordinance providing the Planning Commission with power to grant exceptions to zoning regulations and restrictions, the development standards were appropriately waived.
Challenges to a board's zoning and planning decisions should be made through a petition for judicial review
The procedure by which the district court reviews local zoning and planning decisions requires clarification. Past challenges to a governing board's zoning and planning decisions have been presented to the district court through a petition for a writ of mandamus.8 However, in 2001, the Legislature enacted NRS 278.3195(4), which states,
Any person who:
may appeal that decision to the district court ... by filing a petition for judicial review within 25 days after the date of filing of notice of the decision with the clerk or secretary of [the Board] ....
Statutory construction is a question of law, which this court reviews de novo.9 Absent an ambiguity, this court follows a statute's plain meaning.10 NRS 278.3195(4) is clear and unambiguous, and thus, we follow its plain meaning. A party who has administratively appealed to the Board, under the local ordinance, may challenge the Board's decision "by filing a [timely] petition for judicial review."11 As a mandamus petition is only appropriate if no adequate and speedy legal remedy exists,12 and the Legislature has created the right to petition for judicial review, which constitutes an adequate and speedy legal remedy, mandamus petitions are generally no longer appropriate to challenge the Board's final decision.
This change in procedure is significant. Unlike a petition for a writ of mandamus, which the district court has complete discretion to consider,13 a petition for judicial review under NRS 278.3195(4) creates a right of review in the district court. Additionally, even if the district court exercises its discretion and considers a petition for mandamus relief, it should grant such relief only to compel the performance of an act that the law requires, or to control an arbitrary or capricious exercise of discretion.14 In a petition for judicial review, however, the district court reviews the agency record to determine whether the Board's decision is supported by substantial evidence.15
Moreover, this court's standard of review differs depending on whether the party is appealing from a district court order resolving a mandamus petition or disposing of a petition for judicial review. When reviewing a district court order resolving a petition for mandamus relief, this court considers whether the district court has abused its discretion.16 Conversely, when this court examines an order disposing of a judicial review petition, this court's function is the same as the district court: to determine, based on the administrative record, whether substantial evidence supports the administrative decision.17 Thus, this court affords no deference to the district court's ruling in judicial review matters.
Here, Kay understandably challenged the district court's order through both a petition for judicial review and a petition for a writ of mandamus. As the petition for judicial review was the proper mechanism, under NRS 278.3195, to invoke the district court's jurisdiction to examine the administrative decision, Kay's writ petition was inappropriate. Accordingly, we review this appeal as taken solely from the district court's denial of Kay's petition for judicial review.
Kay had standing to file a petition for judicial review
We now address a threshold issue raised by Nunez and the Board: whether Kay had standing to seek judicial review. The Board and Nunez argue that Kay lacked standing to challenge the Board's decision in district court because he was not "aggrieved" under NRS 278.3195(4). They assert that he was required to show either a "special or peculiar" injury not suffered by the public as a whole or an adversely and substantially affected property right and that he failed to do so. Although we have required a "special or peculiar injury" in the context of street vacations18 and have defined an "aggrieved party" for general appellate purposes as one whose personal or property right has been "adversely and substantially affected,"19 the Legislature has substituted its own definition of "aggrieved" for purposes of local zoning and land use planning decisions.
Under NRS 278.3195(1), the Board must adopt an ordinance...
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