43. Scope of review. [See also Discretion
& Record]
a. "Unless we can say that the ordinance, as it affects petitioner's
property, discloses an unreasonable or arbitrary exercise of power by the zoning
authorities and has no substantial relation to the public health, safety, morals
or general welfare, it is neither the duty nor the province of this court to
interfere with the discretion invested in these authorities."
State v. Coleman, 67 Nev. 636, 641, 224 P.2d
309 (1950). No. 2.
b. "Concededly, the action taken by the city council in its
administrative capacity...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
was proper."
Henderson v. Henderson Auto, 77 Nev. 118, 122,
359 P.2d 743 (1961). No. 5.
c. "Respondents recognize the general rule that a court is
not empowered to substitute its judgment for that of a zoning board, in this
case the board of county commissioners."
McKenzie v. Shelly, 77 Nev. 237, 240, 362 P.2d
268 (1961). No. 6.
d. "The trial court's function is "limited to a review of
the record of information presented to the city council...."
Urban Renewal Agcy. v. Iacometti, 79 Nev.
113, 118, 379 P.2d 466 (1963). No. 7.
e. "Nevada has recognized this principle for years in varying
circumstances. We have not distinguished between the scope of trial court review
of a formal hearing by a government body, Nevada Tax Commission v. Hicks,
73 Nev. 115, 310 P.2d 852; its review of such body's determination made after
investigation and a public hearing, McKenzie v. Shelly, 77 Nev. 237,
362 P.2d 268; and its review of a governmental body's discretionary ruling made
after investigation and inquiry, but without a formal hearing or a public hearing,
Douglas County Board of County Commissioners v. Pedersen, 78 Nev. 106, 369
P.2d 669. In each instance, the court's inquiry is limited to the record of
information presented to the governmental body. The court's purpose is to ascertain
whether, upon such information, that body acted arbitrarily, capriciously, and
abused its discretion.. Thus, a trial court should sustain discretionary action
of a governmental body, absent an abuse thereof, to the same extent that an
appellate court upholds the discretionary action of a trial court." Id. at
118.
f. "Courts are becoming increasingly aware that they are
neither super boards of adjustment nor planning commissions of last resort.
(citations omitted) Rather, the court acts as a judicial overseer, drawing the
limits beyond which local regulation may not go, but loathing to interfere,
within those limits, with the discretion of local governing bodies." (citation
omitted)
Coronet Homes, Inc. v. McKenzie, 84 Nev. 250,
256, 439 P.2d 219 (1968). No. 10.
g. "The zoning power is one of the tools of government which,
in order to be effective, must not be subjected to judicial interference unless
clearly necessary. For this reason, a presumption of validity attaches to a
zoning ordinance which imposes the burden to prove its invalidity upon the one
who challenges it." Id. at 256.
h. "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 substitute its opinion for that of
the city commissioners. City of Reno v. Folsom, 86 Nev. 39, 464 P.2d
454 (1970); Urban Renewal Agency v. Iacometti, 79 Nev. 113, 379 P.2d
// 466 (1963); McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961);
City of Henderson v. Henderson Auto Wrecking, Inc., supra; Nevada Tax Comm'n
v. Hicks, 73 Nev. 115, 310 P.2d 852 (1957).
State ex rel. Johns v. Gragson, 89 Nev. 478,
482-483, 515 P.2d 65 (1973). No. 15.
i. "The record in the instant case is void of any evidence
to support the ruling revoking Johns' home occupation permit. In such a case,
therefore, where the decision of an administrative body is arbitrary, oppressive,
or accompanied by manifest abuse, this court will not hesitate to interfere.
City of Henderson v. Henderson Auto Wrecking, Inc., supra; Nevada
Tax Comm'n v. Hicks, 73 Nev. 115, 310 P.2d 852 (1957)." Id. at 483.
j. "Zoning is a legislative mater and the legislature
has acted. Eagle Thrifty v. Hunter Lake P.T.A., 85 Nev. 162, 451 P.2d
713 (1969).... As a general proposition, the zoning power should not be subjected
to judicial interference unless clearly necessary. Coronet Homes, Inc. v.
McKenzie, 84 Nev. 250, 439 P.2d 219 (1968)."
Board of Comm'rs v. Dayton Dev. Co., 91 Nev.
71, 75, 530 P.2d 1187 (1975). No. 18.
k. Court erred by conducting a trial de novo. "Its province
was confined to a review of the record of evidence presented to the Clark County
Board of Commissioners and the Planning Department, with its primary focus on
the variance itself."
Clark Co. Bd. Comm'rs v. Taggart Constr., 96
Nev. 732, 734, 615 P.2d 965 (1980). No. 24.
l. "Like the district court, we are limited to the record
made before the City Council in our review of the council's decision. State
ex rel. Johns v. Gragson, 89 Nev. at 482, 515 P.2d at 68; // McKenzie
v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961). In the instant case the City
Council gave no reasons for its decision, and there is no substantial evidence
in the record to support the denial of Travelers' special use permit."
City Council, Reno v. Travelers Hotel, 100
Nev. 436, 439-440, 683 P.2d 960 (1984). No. 30.
m. "While we have said that courts are not super boards of
adjustment, we have nevertheless recognized that they can properly act as judicial
overseers, 'drawing the limits beyond which local regulation may not go.' Coronet
Homes, Inc. v. McKenzie, 84 Nev. 250, 256, 439 P.2d 219, 223 (1968). More
importantly, we have held that 'where the decision of an administrative body
is arbitrary, oppressive, or accompanied by manifest abuse, this court will
not hesitate to interfere.' State ex rel. Johns v. Gragson, 89 Nev. 478,
483, 515 P.2d 65, 68 (1973)."
City of Reno v. Nevada First Thrift, 100 Nev.
483, 488, 686 P.2d 231 (1984). No. 31.
n. "Finally, we note it is not the business of courts to
decide zoning issues. Coronet Homes, Inc. v. McKenzie, 84 Nev. 250, 256,
439 P.2d 219, 223 (1968). Because of the Board's particular expertise in zoning,
courts must defer to and not interfere with the Board's discretion if this discretion
is not abused."
Nevada Contractors v. Washoe County, 106 Nev.
310, 314, 792 P.2d 31 (1990). No. 37.
o. "We have settled the deferential standard of review accorded
to actions of municipalities in prior decisions of this court. Thus, in Urban
Renewal Agency v. Iacometti, 79 Nev. 113, 118, 379 P.2d 466, 468 (1963),
we held that 'a trial court should sustain discretionary action of a governmental
body, absent an abuse thereof, to the same extent that an appellate court upholds
the discretionary action of a trial court.' We also held in Clark County
Liquor & Gaming v. Simon & Tucker, 106 Nev. 96, 97, 787 P.2d 782,
783 (1990), that 'the court may interfere with an agency's decision only when
there is a manifest abuse of discretion.' In Simon & Tucker, we determined
that in balancing private and public interests, a governmental agency must consider
the public interest paramount. Id. Finally, in characterizing the type
of discretionary abuse inviting judicial intervention, we observed that 'the
essence of the abuse of discretion, of the arbitrariness or capriciousness of
govern // mental action in denying a license application, is most often found
in an apparent absence of any grounds or reasons for the decision. 'We did it
just because we did it.'' City Council v. Irvine, 102 Nev. 277, 280,
721 P.2d 37 (sic), 372-73 (1986)."
Tighe v. Von Goerken, 108 Nev. 440, 442-443,
833 P.2d 1135 (1992). No. 40.
p. "Like the district court, this court is limited to the
record made before the City in reviewing the City's decision. See State ex.
rel. Johns v. Gragson, 89 Nev. 478, 482, 515 P.2d 65, 68 (1973). The grant
or denial of a request for a special use permit is a discretionary act. City
Council, Reno v. Travelers Hotel, 100 Nev. 436, 439, 683 P.2d 960, 961-62
(1984). If this discretionary act is supported by substantial evidence, there
is no abuse of discretion. Id. Substantial evidence is that which ''a
reasonable mind might accept as adequate to support a conclusion.'' State,
Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986)
(quoting Richardson v. Perales, 402 U.S. 389 (1971))."
City of Las Vegas v. Laughlin, 111 Nev. 557,
558, 893 P.d 383 (1995). No. 44.
q. "When a district court has reviewed a zoning decision
without taking additional evidence and the decision is appealed to this court,
the scope of review is usually limited to a determination of whether the agency
or municipality which made the decision appealed from committed an abuse of
discretion. See Nevada Contractors v. Washoe County, 106 Nev. 310, 313-14,
792 P.2d 31, 33 (1990). Review by this court is based upon the record made before
the commission or council, City Council, Reno v. Travelers Hotel, 100
Nev. 436, 439, 683 P.2d 960, 962 (1984), and the grant or denial of a special
use permit will not be disturbed absent an abuse of discretion."
City of Reno v. Harris, 111 Nev. 672, 677, 895
P.2d 663 (1995). No. 45.
r. "No presumption of validity attaches to the decision of
a district court that does not hear additional evidence in reviewing a zoning
decision made by a municipality. (citation omitted) However, where the district
court takes additional evidence, the scope of review is limited to a determination
of whether the district court committed an abuse of discretion or made an error
of law." Id. at 677.
s. "The function of the district court is to ascertain as
a matter of law whether there was substantial evidence before the Board which
would sustain the Board's actions, and the function of this court at this time
is the same as that of the district court. McKenzie v. Shelly, 77 Nev.
237, 242, 362 P.2d 268, 270 (1961). Like the district court, this court is limited
to the record made before the Board in reviewing the Board's decision. Laughlin,
111 Nev. at 558, 893 P.2d at 384. Finally, 'no presumption of validity attaches
to the decision of a district court that does not hear additional evidence in
reviewing a zoning decision made by a municipality.' City of Reno v. Harris,
111 Nev. 672, 677, 895 P.2d 663, 666 (1995)."
Enterprise Citizens v. Clark Co. Comm'rs,
112 Nev. 649, 653, 918 P.2d 305(1996). No. 48.
t. "The grant or denial of a rezoning request is a discretionary
act. See McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961) (stating
that under the police power, zoning is a matter within sound legislative discretion
and such legislative action must be upheld if the facts do not show that the
bounds of that discretion have been exceeded.) If a discretinary act is supported
by substantial evidence, there is no abuse of discretion. Enterprise Citizens
v. Clark Co. Comm'rs, 112 Nev. 649, 918 P.2d 305 (1996). Further, a presumption
of validity attaches to local zoning enactments and amendments. See McKenzie
v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961).
County of Clark v. Doumani, 114 Nev.Adv.Op.
6 (1998) (p. 6) No. 49
u. "Previously, we stated that we would
review a district court decision granting or denying a writ petition for an
abuse of discretion only if the district court has taken additional evidence
from that heard by the commission or council. See City of Reno v. Harris,
111 Nev. 672, 895 P.2d 663 (1995). Otherwise, we would focus on the commission
or council's decision and examine it for an abuse of discretion. See Harris,
111 Nev. at 677, 895 P.2d at 666. We see no reason, however, to make a distinction
in the standard of review based on whether the disctrict court has taken additional
evidence. Since the district court has discretion to grant or deny a writ petition,
all appeals from a district court grant or denial of a writ petition will be
reviewed under an abuse of discretion standard."
County of Clark v. Doumani, 114 Nev.Adv.Op.
6 (1998) (p. 6, n. 2) No. 49