City Of Las Vegas v. Res. Transition Consultants, Llc ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
CITY OF LAS VEGAS, A POLITICAL No. 83455
SUBDIVISION OF THE STATE OF
NEVADA, AND ITS DEPARTMENT OF
PLANNING CODE ENFORCEMENT
DIVISION,
FL D
Appellant, OCT 3 1 2022
vs.
RESOURCE TRANSITION
CONSULTANTS, LLC, SOLELY IN ITS
CAPACITY AS RECEIVER FOR LAS
VEGAS APARTMENT LENDERS, LLC,
A WASHINGTON LIMITED LIABILITY
COMPANY; AND OLYMPIC COAST
INVESTMENT, INC., A WASHINGTON
CORPORATION, SOLELY WITH
RESPECT TO PROPERTY
ABANDONED BY ORDER OF THE
UNITED STATES BANKRUPTCY
COURT FOR THE WESTERN
DISTRICT OF WASHINGTON, ET AL.,
AND PARTICIPANTS IN OLYMPIC
COAST INVESTMENT, INC., LOAN
NO. 26067 AND LAS VEGAS
APARTMENT LENDERS LLC, LOAN
NO. 27,000,
Res ondents.
ORDER OF REVERSAL AND REMAND
This is an appeal from a district court order granting a petition
for a writ of mandamus. Eighth Judicial District Court, Clark County;
Elizabeth Goff Gonzalez, Judge.
Appellant City of Las Vegas (the City) recorded liens for
$2,285,480.20 in abatement costs it incurred to clear a site under
respondent Resource Transition Consultants, LLC (RTC)'s control and
separate liens for $1,901,250 in discretionary civil penalties. The site
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consisted of multiple parcels, including parcels with numerous residential
units, and violations lasted for over 89 days until the City could abate the
nuisances. RTC only disputed the civil penalties which were assessed at
$750 per day for 39 days on each individual parcel, and which also
accounted for the number of residential units on each parcel. After oral
arguments, the Las Vegas City Council (the City Council) designee
approved the proposed daily civil penalties against RTC which totaled
$1,901,250. The district court granted RTC's petition for a writ of
mandamus and vacated the discretionary civil penalties, finding that the
designee lacked subject matter jurisdiction because the penalties assessed
exceeded the jurisdictional amount a hearing commissioner could levy. The
City appeals.
This court reviews a district court's decision to grant or deny a
writ petition for an abuse of discretion. Reno Newspapers, Inc. v. Haley, 126
Nev. 211, 214, 234 P.3d 922, 924 (2010). When the writ petition raises
questions of statutory interpretation, the review is de novo. Id. The district
court's interpretation and construction of a statute, including the
administrative construction of statutes, presents a question of law that is
reviewed de novo. Elizondo v. Hood Mach., Inc., 129 Nev. 780, 784-85, 312
P.3d 479, 482 (2013).
The City Council, as a governing body of a city, was authorized
to adopt, by ordinance, procedures to regulate nuisances. See NRS
268.4122. NRS 268.4122(2)(a) specifies the required procedures that an
ordinance must contain, including that the owner is "[a]fforded an
opportunity for a hearing before the designee of the governing body relating
to the imposition of civil penalties and an appeal of that decision. The
ordinance must specify whether all such appeals are to be made to the
governing body or to a court of competent jurisdiction." NRS
SUPREME COURT 268.4122(2)(a)(4). The City Council, in turn, adopted the Las Vegas
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Municipal Code (LVMC) 9.04.100(A), which provides that a hearing on a
nuisance abatement report would be heard by "the City Council or before
the City Council's designee." Through the code, the City designated that
appeals were to be made to the governing body rather than a court.
The City's enforcement of the nuisance statute is an exercise of
its legislative, policy, and police powers pursuant to the Las Vegas City
Charter (LVCC), section 2.260 ("Powers of City Council: Nuisance"). The
City Council is the one who "[p]rovide[s] any other penalty for or
punishment of any person who is responsible for any nuisance." LVCC §
2.260(4). It follows then that the designee's power to make such decisions
stems from this section rather than that of a "[Wearing [c]ommissioner"
under LVCC § 4.040 as argued by the RTC, and the limitations of the
municipal court therefore do not apply.' To conclude otherwise and treat
the City Council designee as a hearing commissioner would disregard the
Legislature's intent and the Las Vegas City Charter. Compare LVCC 4.040
(hearing commissioner), with LVMC § 2.22.010 (stating that the hearing
examiner is "to act on behalf of the Council... in conducting any
disciplinary proceedings as provided in Title 6"), and LVMC 7.04.295
(defining hearing officer expressly as "a person appointed by the City
Manager or a designee" under Title 7). Thus, the district court erred in
concluding that the City Council designee was subject to the same
restrictions as a hearing commissioner.
1While RTC is correct that hearing commissioners are authorized
under LVCC § 4.040(1) to hear and decide misdemeanor violations, the
penalties imposed herein are civil and are inherently distinct from the
criminal misdemeanor violations RTC refers to. See LVMC 9.04.030
(criminal penalties); but see LVMC 9.04.040 (civil liability). These are two
separate sections and the penalties imposed in this case were civil and
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pursuant to LVMC 9.04.040.
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The district court's error was further compounded by its
treatment of the civil penalty as based on a single violation. The district
court addressed the civil penalty issue as fixed amounts per parcel instead
of recognizing that the amounts were cumulative, constituting multiple
adjudicated nuisance violation penalties.
The City Council designee found that violations occurred for
each nuisance for each day that the nuisance remained unabated by RTC.
The civil penalties were then calculated and assessed as to each separate
violation, with the City Council designee imposing a $750 penalty per each
violation. This amount is substantially below the statutory maximum of
$5,000 per violation. See NRS 202.480(1)(b). We perceive no error in the
City Council designee's decision in assessing the number and individuality
of the nuisance violations and in imposing a $750 penalty for each violation.
Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.2
J.
Hardesty
A/k5C.4-0 J.
Stiglich
Herndon
21nlight of this order, we need not address the other arguments raised
by the parties.
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cc: Judge Elizabeth Goff Gonzalez, Eighth Judicial District Court
Lansford W. Levitt, Settlement Judge
Las Vegas City Attorney
Fleming Law Firm, PLLC
Eighth District Court Clerk
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