State ex rel. Johns v. Gragson

• Decision Date: 29 October 1973
• Docket Number: No. 7141,7141
• Citation: 515 P.2d 65,89 Nev. 478
• Parties: STATE of Nevada ex rel. Robert Thomas JOHNS, Appellant, v. Oran GRAGSON, Mayor, et al., Respondents.
• Court: Nevada Supreme Court

Page 65

515 P.2d 65

89 Nev. 478

STATE of Nevada ex rel. Robert Thomas JOHNS, Appellant, v. Oran GRAGSON, Mayor, et al., Respondents.

No. 7141.

Supreme Court of Nevada.

Oct. 29, 1973.

Larry C. Johns, Las Vegas, for appellant

Carl E. Lovell, City Atty., and Janson F. Stewart, Deputy City Atty., Las Vegas, for respondents.

OPINION

MOWBRAY, Justice.

On October 29, 1971, after a public hearing and the receipt of appropriate fees from the applicant, the Board of Zoning Adjustment of the City of Las Vegas determined that appellant, Robert T. Johns, had complied with the provisions of Las Vegas City Code § 11--1--24(C) and granted him a home occupation permit pursuant thereto. ¹

The permit allowed Johns to maintain a print shop in the converted garage of his home in Las Vegas and was granted on three conditions: 1) If a complaint was received regarding the operation, the surrounding property owners would be notified, the Board would conduct a review, and the approval might be rescinded; 2) there was to be no advertising; and 3) there was to be an automatic review by the Board in 6 months to determine the status of the operation.

On April 27, 1972, Johns' permit was reviewed by the Board, which then voted, without indicating the reasons therefor, to terminate the permit effective July 27, 1972. The decision was appealed to the Las Vegas City Commissioners, who, at a public hearing held June 21, 1972, orally afirmed the decision of the Board, again without giving Johns the reasons for this denial.

On July 24, 1972, Johns filed a petition for a writ of mandamus challenging the action of the Board and the City Commissioners. The district court issued an alternative writ of mandamus on that same day, and a hearing on the peremptory writ was conducted on September 21, 1972. After the hearing, the trial court, without making any findings, rendered its decision ordering that the petition for writ of mandamus be denied and the alternative writ quashed. The present appeal is from this order.

The Board's decision-making process is confined by standards set forth in the ordinance establishing the Board, and within these limits the Board carries out a discretionary task. In the instant case, the Board had the power to grant Johns a home occupation permit, provided: (1) there was no tangible evidence that the occupation was being carried on in the neighborhood, (2) the home occupation was clearly incidental and secondary to the residential use of the property, and (3) the home occupation would in no way be injurious, harmful, detrimental or obnoxious to the neighborhood. Las Vegas City Code § 11--1--24(C), supra.

A fair reading of the record, including the minutes of the Board of Zoning Adjustment and the City Commission, demonstrates a patent abuse of discretion by these bodies. At the April 27, 1972, meeting of the Board, it was uncontroverted that no complaints regarding Mr. Johns' operation had been received, nor had the status of Mr. Johns' operation changed since the original permit was granted. The minutes reflect that this was the only evidence before the Board; nevertheless, a motion to revoke the home occupation permit after a period of 90 days was unanimously passed. No reasons for the revocation of the permit were stated, and none appear in the record before this court.

The minutes of the regular meeting of the Las Vegas City Commission on June 21, 1972, also fail to show any justification for the revocation. The only 'evidence' supporting revocation of the permit consisted of opinions voiced by the Commissioners. Even if such statements were construed as official positions of the Commission, they do not constitute valid grounds for denial under the ordinance, absent supporting proof. On the other hand, appellant offered a document signed by the property owners in his neighborhood indicating that they had no objection at all to the continuance of the permit. ²

This court stated in City of Henderson v. Henderson Auto Wrecking, Inc., 77 Nev. 118, 122, 359 P.2d 743, 745 (1961):

'. . . Respondent, as plaintiff before the trial court, was required to establish abuse of discretion on the part of the city council in the denial by that body of respondent's application for a use permit. Such showing of an abuse of the discretion vested in the council was established before the trial court by respondent's showing of a lack of substantial evidence before the council, which served as a basis for its action in denying respondent's application. Concededly, the action taken by the city council in its administrative capacity, upon the matter properly before it, would not warrant interference by the trial court except where there was a manifest abuse of discretion. Here, however, where there was no evidence to support the council's actions, the trial court's action (issuing a peremptory writ of mandate) was proper. (Citations omitted.) The exercise of discretion by the city council as an administrative board, (sic) could not be sustained in court on the basis of conclusions reached by the city council in the absence of circumstances which reasonably justified such conclusions. (Citation omitted.)'

The review of administrative decisions by the district court and this court is limited to the record made before the administrative tribunal, and in the absence of a showing that the agency acted fraudulently or arbitrarily, the district court may not...