High court upholds Douglas County slow-growth initiative | NevadaAppeal.com

High court upholds Douglas County slow-growth initiative

Geoff Dornan, Appeal Capitol Bureau

The Nevada Supreme Court on Tuesday upheld a strict limit approved by voters in November on new development in Douglas County.

But the court concluded that doesn’t prevent future lawsuits over the substance of the ordinance enacted to put the limits in effect.

The Sustainable Growth Initiative was challenged by developer Nevada Northwest and Douglas County, which said a zoning issue was “administrative” and not up to the voters.

A Douglas County judge agreed, but the state Supreme Court let the vote go ahead, saying it would rule after the election if voters approved the limits.

On Nov. 5, voters imposed a cap of 280 new homes a year in Douglas County.

The high court Tuesday upheld that vote as valid in a 30-page, unanimous decision.

Like the Fuji Park initiative in Carson City and the attempt to get voters to block the Reno train trench, the issue centered on whether the Douglas County initiative was an illegal infringement on the administrative powers of the county planning commission and county commission.

In those earlier cases, the Supreme Court ruled voters couldn’t enact special rules to impose a specific administrative decision, such as preventing the sale of Fuji Park or blocking the plan to lower railroad tracks through Reno.

The high court, however, agreed with John Garvin, Judy Sturgis, Gary Pyle, James Slade and Patricia McKay-Timm — five residents who organized the petition drive — that the initiative was different because it legislated a countywide policy limiting growth, rather than a specific zoning decision.

The high court overruled the historic Forman case from the 1960s, which said initiative petitions can’t be used for matters that have been legislatively delegated to cities and counties, such as zoning questions.

The opinion said the earlier case made all land-use and zoning matters “completely off-limits to direct citizen action.” That, the justices said, is a misinterpretation of the state constitution.

“This reasoning does not give the constitutional provisions the authority they deserve,” Tuesday’s opinion states. It quotes the California Supreme Court in a similar case as saying the Legislature can specify how local governments enact zoning rules, but then can’t bar citizen action on the same issues.

“In other words, if a county board of commissioners or city council can enact zoning legislation, the county and city voters can do the same by initiative,” the opinion says. “This interpretation truly gives the voters the same legislative authority as the local governing body.”

The opinion says Douglas County citizens have the right to put a measure on the ballot which changes county policy.

“Zoning is not an end in itself but rather a means of achieving various community objectives,” the opinion states. “And as a community’s goals and beliefs change, so must its land-use policies.”

The court, however, made clear it wasn’t opening the door to citizen micro-management of city and county boards. It said administrative decisions are still improper subjects for an initiative petition.

So saying, the court reaffirmed its decisions in the Fuji Park and Reno train trench cases.

While the opinion upholds the validity of zoning and growth limits for ballots, it doesn’t address the substance of the restrictions imposed.

“The county and Nevada Northwest are not left without a judicial remedy, however, since the substantive validity of all legislation may be challenged after it is enacted,” the opinion stated.

Reaction to state high court’s ruling

Nevada Appeal News Service

Douglas County’s cap on building permits will not go into effect immediately because of a temporary restraining order issued by Judge Michael Gibbons of the 9th Judicial District Court on Nov. 7.

Gibbons is expected to rule on that order at 2 p.m. hearing Thursday.

The plaintiffs in that case, Minden-based Jumpers LLC and Century 21 Clark Properties, filed the temporary restraining order hours after Douglas County commissioners canvassed the votes from the Nov. 5 general election.

Jumpers LLC is the developer of the 31 townhomes behind Arco in North Minden approved by the Douglas County Commission Oct. 3.

Patty Clark, owner of Jumpers and part-owner of Clark Properties Century 21, said Tuesday she was distraught about the Supreme Court decision.

“It’s kind of like sticking a microphone in the face of a dad who just watched his son drown,” she said.

Carole Thompson, executive director of the Douglas County Building Industry Association, which also petitioned Douglas District Court on Thursday to have the Jumpers LLC/Century 21 Clark Properties lawsuit consolidated with a DCBIA suit, did not have a comment.

“Wow. I don’t think I have a quote,” Thompson said. “I’m surprised.”

Douglas County District Attorney Scott Doyle and County Manager Dan Holler met Tuesday afternoon to discuss the repercussions of the decision.

“What we anticipate now is a host of lawsuits and whether they are combined or stay separate is up to various property owners,” Holler said.

“This first hurdle has been cleared, which is that this is a legal matter, and it is a valid subject matter,” Holler said. “Anything else related to the initiative is still pending at the lower court.”

Sustainable Growth Initiative proponents said they are thrilled at the ruling.

“Hurrah,” said John Garvin, vice chairman of the SGI Committee. The Supreme Court decision “validated our position.”

“It also validates the power of an initiative on a local basis and reaffirms that the initiative process is alive and well.”

“This is a great opinion for the initiative process and restores the people’s faith in the process,” said Patty Cafferata, who initially was the attorney for SGI proponents.

Douglas County Commissioner Bernie Curtis said the high court’s ruling did not come as a surprise to him.

“It validates the initiative process to some extent,” he said. “But it is kind of a two-sided sword. The (Supreme Court) ruled against two other initiatives.

“It is a lack of consistency, but maybe now we have it.”