Bing Construction Co. v. County of Douglas

810 P.2d 768, 107 Nev. 262, 1991 Nev. LEXIS 43
CourtNevada Supreme Court
DecidedApril 30, 1991
DocketNo. 20911
StatusPublished

This text of 810 P.2d 768 (Bing Construction Co. v. County of Douglas) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bing Construction Co. v. County of Douglas, 810 P.2d 768, 107 Nev. 262, 1991 Nev. LEXIS 43 (Neb. 1991).

Opinion

[263]*263OPINION

Per Curiam:

Appellant Bing Construction Company of Nevada (Bing) has operated a sand and gravel pit in the Gardnerville Ranchos area (the Ranchos) of Douglas County since 1967. At that time, the Douglas Board of County Commissioners (the County) granted Bing a five year use permit to conduct its business. One of the conditions of the permit was that Bing pay one-half the cost of paving Tillman Lane which abuts the Bing property.

In 1971, the agreement was renewed and reduced to writing. The County granted Bing a special use permit for the operation of its business for the useful life of the gravel pit. The permits also granted Bing rights to ingress and egress from the site using county roads. However, in 1989, the County adopted Resolution 89-55 which impaired some of the transportation rights granted Bing eighteen years earlier under the 1971 special use permit. The questions before this court are whether the County had the right to impair Bing’s rights under the permit, and whether the County followed the proper procedures to do so.

The County held a public hearing on October 5, 1989, to discuss Resolution 89-55. The commissioners had already voted on and passed the resolution and this meeting was for a public discussion and a revote. A representative from Bing attended the meeting and brought an attorney.

Many of those who attended the hearing, including Bing and other construction companies, complained that they were given no notice of the hearing and were unaware of the contents of the resolution. Then one of the commissioners read it aloud and explained the County’s reasons for passing it. In spite of the lack of notice, Bing and its attorney seemed to have been aware of the contents and nature of the resolution because they voiced many of the same opinions and arguments that they now raise on appeal.

The resolution would preclude truck trafile through certain [264]*264roads within the Ranchos. The roads at issue include Riverview Drive, Dresslerville Road and part of Tillman Lane, roads that Bing commonly uses to transport materials. The reason for the resolution is that the constant use of these roads for trucking has made them unsafe for the families that live in the Ranchos.1 The County decided that truck traffic makes the roads dangerous because they are too narrow for trucks, they have no curbs or sidewalks, and they are dotted with bus stops where children gather and wait.

In response, construction companies complained that restricting the use of the Ranchos roads would impair the efficiency of their businesses and increase traffic on the already congested Interstate 395. They voiced concerns that traveling on 395 would add hours to transportation time, and that 395 is ill-suited for truck use because in some places it is narrower than the roads through the Ranchos. Along 395, trucks would pass by two schools, a grammar school and a high school. The high school has an open campus and teenagers are often in the streets.

In addition to these concerns of the community at large, Bing argued that the County may not pass a resolution in derogation of its special use permit. Nevertheless, the County adopted Resolution 89-55, and Bing brought this action for injunctive relief in district court. Bing litigated on its own behalf, but still asserted the concerns of other companies who use the Ranchos roads for truck transportation.

In the court below, Bing argued that generally, the resolution created too many problems for trucks in the area, and that personally, its special use permit as well as the money it spent on Tillman Lane granted it a vested interest in the Ranchos roads. The trial court decided that a permit is not a contract, and bestows no vested rights. Therefore, the County may revoke the permit when making a zoning change. In addition, the trial court found that (1) whether the resolution is a proper public safety measure need not be addressed because that issue is within the discretion of the county commissioners; (2) the resolution did not impair Bing’s special use permit because Bing could still operate its plant and could still transport its materials over some county roads; (3) if the court allowed Bing alone to use the Ranchos roads, then other truckers would bring discrimination suits; and finally, (4) Bing had sufficient notice of the hearing regarding the impairment of their special use permit because it came prepared to voice its concerns.

[265]*265Bing asserts the same issues on appeal. We agree with the trial court that whether the zoning change is a benefit to the County is within the County’s discretion, and that the County may revoke Bing’s special use permit to make the zoning change. However, we conclude that Bing was not afforded proper notice before this hearing was held and his permit impaired. Although the County complied with Nevada Revised Statutes and Douglas County Codes before holding this hearing, the wording of the applicable statutes and ordinances fails to afford the holder of a special use permit due process before revocation of the permit.

Before the granting of a special use permit, NRS 278.315 requires a board of commissioners to hold a hearing. This statute also provides that the applicant and each owner of property within 300 feet must receive notice of the hearing by mail. Therefore, the county must personally notify interested parties before granting a special use permit.

Nevada law is not so specific regarding the revocation of such a permit. In fact, NRS 278.317 states that a county may reserve for itself the right to modify or reverse permits, but provides no further procedural requirements. Hence, the legislature left to each individual county the decision how to proceed when revoking permits.

Both Clark and Washoe Counties require personal notice to all interested parties upon the revocation of a permit or a zoning change.2 In Douglas County, however, the requirements are far more lax. Notice and a hearing is required upon the granting of a special use permit. But upon revocation, the Douglas County Codes state only that the commission may order non-conforming uses discontinued within a reasonable time.3 Even for general zoning changes, Douglas County only requires notice by publication, which is the minimum that the legislature requires. See NRS 278.260(2), DCC 17.12.080(A).

The County claimed that it published notice of this hearing in a local paper, and hence it satisfied the notice requirements. However, we are not convinced that just because the legislature let individual counties determine their own procedure to alter zoning [266]*266in derogation of a special use permit, counties are free to make changes without personally notifying the citizens who will be directly aifected. Due process concerns require that a property owner must be notified when its rights are changed, even if those rights are not vested. In this case, Bing had been using the Ranchos roads pursuant to a special use permit that it had obtained eighteen years before the County’s decision to make a zoning change.

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Cite This Page — Counsel Stack

Bluebook (online)
810 P.2d 768, 107 Nev. 262, 1991 Nev. LEXIS 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bing-construction-co-v-county-of-douglas-nev-1991.