Sustainable Growth v. Jumpers, LLC

• Decision Date: 09 February 2006
• Docket Number: No. 41118.,41118.
• Citation: 128 P.3d 452
• Parties: SUSTAINABLE GROWTH INITIATIVE COMMITTEE, a Political Action Committee, Appellant, v. JUMPERS, LLC, a Nevada Limited Liability Company; Century 21, Clark Properties, Inc., a Nevada Corporation; Jay D. Marriage, an Individual; Chichester Estates; Nevada Northwest, LLC; Douglas County, a Political Subdivision of the State of Nevada; Douglas County Building Industry Association, a Nevada Non-profit Corporation; Aurora Land, LLC, a Nevada Limited Liability Company; Merrill Construction, Inc., a Nevada Corporation; and Syncon Homes, Respondents. Syncon Homes, Cross-Appellant, v. SUSTAINABLE GROWTH INITIATIVE COMMITTEE, a Political Action Committee, Cross-Respondent. DOUGLAS COUNTY BUILDING INDUSTRY ASSOCIATION, a Nevada Nonprofit Corporation; Aurora Land, LLC, a Nevada Limited Liability Company; and Merrill Construction, Inc., a Nevada Corporation, Cross-Appellants, v. Sustainable Growth Initiative Committee, a Political Action Committee and Douglas County, a Political Subdivision of the State of Nevada, Cross-Respondents.
• Court: Nevada Supreme Court

128 P.3d 452

SUSTAINABLE GROWTH INITIATIVE COMMITTEE, a Political Action Committee, Appellant, v. JUMPERS, LLC, a Nevada Limited Liability Company; Century 21, Clark Properties, Inc., a Nevada Corporation; Jay D. Marriage, an Individual; Chichester Estates; Nevada Northwest, LLC; Douglas County, a Political Subdivision of the State of Nevada; Douglas County Building

Industry Association, a Nevada Non-profit Corporation; Aurora Land, LLC, a Nevada Limited Liability Company; Merrill Construction, Inc., a Nevada Corporation; and Syncon Homes, Respondents.

Syncon Homes, Cross-Appellant, v. SUSTAINABLE GROWTH INITIATIVE COMMITTEE, a Political Action Committee, Cross-Respondent.

DOUGLAS COUNTY BUILDING INDUSTRY ASSOCIATION, a Nevada Nonprofit Corporation; Aurora Land, LLC, a Nevada Limited Liability Company; and Merrill Construction, Inc., a Nevada Corporation, Cross-Appellants, v. Sustainable Growth Initiative Committee, a Political Action Committee and Douglas County, a Political Subdivision of the State of Nevada, Cross-Respondents.

No. 41118.

Supreme Court of Nevada.

February 9, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Brooke Shaw Zumpft and William Jac Shaw, Minden, for Appellant/Cross-Respondent Sustainable Growth Initiative Committee.

Bader & Ryan and Kevin P. Ryan, Reno, for Respondents Jumpers, Century 21, and Marriage.

Scott W. Doyle, District Attorney, and Brian V. Chally, Chief Deputy District Attorney, Douglas County; Thorndal Armstrong Delk Balkenbush & Eisinger and Brent T. Kolvet, Reno, for Respondent Douglas County.

Scarpello & Huss, Ltd., and Mark R. Forsberg, Carson City, for Respondents Chichester Estates and Nevada Northwest.

Kelly R. Chase, Minden, for Respondents/Cross-Appellants Douglas County Building Industry Association, Aurora Land, and Merrill Construction.

Law Offices of Kermitt L. Waters and James Jack Leavitt, Autumn L. Waters, and Kermitt L. Waters, Las Vegas; Manatt, Phelps & Phillips, LLP, and Michael Munroe Berger and George M. Soneff, Los Angeles, California, for Respondent/Cross-Appellant Syncon Homes.

McDonald Carano Wilson LLP and John Frankovich, Reno, for Amicus Curiae Nevada Association of Realtors.

Before the Court En Banc.¹

OPINION

ROSE, C.J.

In this appeal, we address a challenge to a growth initiative adopted by the voters in Douglas County, Nevada. In 2002, the voters of Douglas County passed the Sustainable Growth Initiative (SGI), which limited the number of new dwelling units in the county to 280 per annum. The SGI was challenged as being inconsistent with the Douglas County Master Plan (Master Plan), and the parties filed competing motions for summary judgment. The district court found that the SGI conflicted with the Master Plan and held the SGI void ab initio. The Sustainable Growth Initiative Committee (the SGIC) appeals that decision, arguing that the SGI is in substantial compliance with the Master Plan and should not be defeated on summary judgment. We agree with the SGIC and hold that the SGI is not so inconsistent as to require us to strike down the will of the people by holding it invalid. Thus, we reverse the decision of the district court.

FACTS

The SGIC was formed for the purpose of qualifying an initiative to limit residential growth in the Carson Valley and the Antelope Valley drainage basins on a sustainable, managed basis. The SGI was submitted and approved for the November 2002 ballot. The SGI read:

Shall Douglas County adopt an ordinance amending its development code to provide that no more than 280 new dwelling units shall be built annually in Douglas County, exclusive of the area regulated by the Tahoe Regional Planning Agency (TRPA), except in a disaster emergency declared by the Board of County Commissioners?

The SGI passed with a total vote of 53.22 percent.² Several parties (collectively Jumpers) immediately thereafter filed an action seeking injunctive and declaratory relief. The SGIC was permitted to intervene in the action, and following a hearing, the district court granted Jumpers' application for a temporary restraining order.

In addition to Jumpers, several other plaintiffs filed actions against Douglas County seeking to enjoin enactment of the initiative. The parties stipulated to consolidate the actions. The parties also stipulated that the issues of the SGI's consistency with the Douglas County Master Plan, the facial validity of the SGI, and whether the SGI could be implemented without violating Nevada Constitution Article 19³ or NRS Chapter 295⁴ would be bifurcated from the other issues and would be heard first on summary judgment.⁵

The district court heard the summary judgment motions in February 2003 and found that the SGI was inconsistent with the Douglas County Master Plan. It granted summary judgment in favor of Jumpers and Douglas County and denied the SGIC's summary judgment motion. The district court stated, "Although [the] SGI is consistent with the Master Plan's goal of establishing a growth cap, it is completely inconsistent with the Plan's methodology for doing so, and frustrates other facets of the Plan's vision for orderly growth and development." The district court described several areas of inconsistency, including the Master Plan's recommended growth rate of 2 to 3½ percent per year, the Master Plan's policies concerning conservation and development of natural resources, adoption of a capital improvement plan and hydrology studies to ensure growth does not exceed the county's infrastructure, the Master Plan's requirement that there be a method for maintaining affordable housing, the Master Plan's policies concerning transfer of development rights (TDR), and how the SGI will impact present contracts.

The district court also ruled that, taking the SGIC's assertions as true, the SGI was facially valid for the purposes of summary judgment. It stated:

SGIC has established the requisite nexus (although it is tenuous) between a rationally conceived building cap and a reasonably anticipated water shortage based upon at least debatable scientific prognostication. It has also demonstrated the diminishment of a rural quality of life. Therefore, [the SGI] is not facially invalid as it survives a constitutional challenge at this stage of the proceedings.

The district court also issued an advisory opinion that the SGI could not be implemented without violating Article 19 of the Nevada Constitution or NRS Chapter 295. It concluded that because of the brevity of the SGI, it was "inevitable that any language adopted by the County through ordinance would necessarily entail amending it."⁶ The court then certified its summary judgment order as final pursuant to NRCP 54(b).

The SGIC moved for clarification of whether the SGI was constitutionally valid, whether it was rationally related to a substantial or legitimate interest, and whether the SGIC's motion for summary judgment on this issue was granted or if all parties' motions on this issue were denied. The district court reiterated in its order on the SGIC's motion for clarification that:

SGIC survived summary judgment on the constitutionality of the initiative because the court could not rule on the validity of the underlying facts. Viewing those facts in a light most favorable to [the SGIC], the court could not definitively say that its designation of a 280-building-permit limit was arbitrary, capricious and not rationally related to its espoused goals. This finding, however, as intimated by the court, could change at trial.

The district court concluded that its determination that the SGI was inconsistent with the master plan entitled Jumpers to a permanent injunction of the SGI. Essentially, the district court declared the issue of constitutionality moot because the question of consistency precluded any necessity for evaluating the constitutionality issue. The district court denied SGIC's motion for clarification and reaffirmed its original order.

The SGIC appealed all three issues—compliance with the Master Plan, constitutionality, and the need to amend the SGI. Douglas County objected to the appeal of the constitutionality and amendment of the initiative issues because they were not part of the original summary judgment order that dealt solely with the compliance issue. Syncon Homes (Syncon) cross-appealed all three issues, which Douglas County again objected to on the same basis. Douglas County Building Industry Association (DCBIA) cross-appealed the district court's denial of summary judgment to all parties on the SGI's facial validity and the district court's decision to reserve that issue for trial. Douglas County objected to the DCBIA's cross-appeal because the facial validity issue was not the basis on which the district court predicated summary judgment in favor of Jumpers and Douglas County.

Douglas County asked this court to dismiss this appeal. We required the parties to show cause by correcting the jurisdictional defects in the appeal and ensuring that the district court summary judgment order could be certified as final under NRCP 54(b). The district court entered an amended order incorporating by reference the summary judgment and clarification orders. It also stated, "Given the plethora of disputed facts relied upon by the various parties in supporting or attacking the scientific data upon which [the SGI] was predicated, this court was constrained to deny [Jumpers'], [Douglas County's] and [the SGIC's] motions [for summary judgment]" on the constitutionality issue. In conclusion, the district court declared the constitutionality and amendment issues moot and reaffirmed its basis for granting Jumpers' and Douglas County's motions for summary judgment. Following the district court's amended order, we denied Douglas County's motion to dismiss the appeal and allowed the appeal to proceed.

DISCUSSION

At the outset, we note that it is important that we are reviewing this appeal in the context of summary judgment and...