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Judicial Review of Municipal Decisions: Four Pitfalls to Avoid

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JuDiCial review of muniCiPal DeCisions
FOUR PITFALLS TO AVOID
BY JEFFREY F. BARR, ESQ.
Pitfall no. 1:
applying nrs 233B to local governments
The rule here is simple – Nevada’s Administrative Procedure Act does not apply to decisions of local governments.1 By its own terms NRS 233B only permits review of a decision from “an agency…of the Executive Department of the State Government.”2 A county or a municipality is not a division of Nevada’s executive department. Rather, it is a well-settled principle that local governments “are creatures of the Legislature.”3 The NRS 233B pitfall is an easy trap to fall into because the standards for judicial review of local governments’ decisions and decisions of administrative agencies are nearly identical. Both limit review to evidence before the determining body.4 Both require that the determining body’s decision be supported by substantial evidence.5 Finally, both standards refuse to substitute the judgment of the courts for the judgment of the determining body as to the weight of evidence.6 The Nevada Supreme Court will often interchangeably cite the decisions of administrative procedure act cases in cases of judicial review of a local government’s decision.7 So, even the Nevada Supreme Court has occasionally fallen into this trap.8
Practice before counties and municipalities is a unique area of law, and seeking judicial review of their decisions is fraught with similarly unique pitfalls. This article examines four common errors practitioners make when seeking judicial review of decisions from local governments.
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Judicial review of local governments’ decisions differs substantially, however, in one respect from judicial review under NRS 233B, namely in the right to judicial review in the first instance. NRS 233B.130 grants the right of judicial review to any party aggrieved by an administrative agency’s decision. With rare exception, parties aggrieved by a local government’s decision have no statutory right to judicial review.9 Without a statutory right to appeal a local government’s determination, an aggrieved party must resort to filing an extraordinary writ in order to invoke the power of the courts. In short, practitioners should avoid citing to NRS 233B as a basis for judicial review of a local government’s decision.
preclude a party from even filing a claim with a local government if the party fails to present a written demand to the city council or county commission within six months from the time the claim becomes due. Missing the timeline of the claims statutes forever bars the claims. This applies to untimely contractual and tort claims.11 As applied to untimely tort claims, however, the Nevada claims statutes have a somewhat tortured history in case law but, ultimately, the United States Supreme Court has affirmed their constitutionality.12 Practitioners can expect to see local governments relying on Nevada’s claims statutes to defeat untimely claims.
Pitfall no. 4:
Pitfall no. 2:
suing the wrong entity
The rule here is likewise simple: individual departments of local governments are not legal entities and cannot be sued. The county or the municipality is the proper defendant. Thus, for example, the Washoe County General Hospital, the Elko County Sheriff’s Department, the Washoe County District Attorney’s Office, the Southern Nevada Memorial Hospital and the North Las Vegas Police Department were all named as defendants in various suits. In each case, the courts dismissed the suit holding that the individual departments had no legal existence and could not be subject to suit.10 Practitioners would be well-advised to name the proper defendant in any suit involving a local government.
not Knowing the substantial evidence standard
On a petition for judicial review in a dispute with a local government, the court’s role is generally to determine, based on the record, whether the local government committed an abuse of discretion or, put
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Pitfall no. 3:
missing the time limits
The rule here is simply articulated, but sometimes hard in practice: know your time limits. The time limits to seek judicial review of local governments’ decisions are often abbreviated. For example, NRS 278.3195 requires an aggrieved party to seek judicial review of a land use decision no later than 25 days after the party receives notice of the decision. Likewise NRS 338.142 limits the time to file a bid protest to five days after the opening of the bids. Finally, Nevada’s claims statutes, NRS 268.020 and NRS 244.250 respectively,
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FOUR PITFALLS TO AVOID
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differently, whether substantial evidence supported the local government’s decision.13 This standard is extremely deferential to the local government. The Nevada Supreme Court has consistently defined “substantial evidence” as that amount of evidence which “a reasonable mind might accept as adequate to support a conclusion.”14 The substantial evidence standard does not permit a reviewing court to weigh evidence to see if a burden of proof was met, to pass on credibility, or reverse a local government decision even though it is against the great weight of evidence.15 But “substantial evidence” is not “no evidence whatsoever.” For example, statements made by attorneys for interested parties and unsupported opinions of a city council are not “substantial evidence” sufficient to uphold a local government’s determination.16 Thus, the record must contain some evidence. Often, this is as simple as a staff report.17 Nevertheless, the quantum of evidence necessary to sustain a local government’s decision is very small while the party challenging that decision bears a heavy burden.
As a final note, these pitfalls can be disastrous to a case, but they are relatively easy to avoid. Practitioners should familiarize themselves with Nevada statutes, case law and the codes of the individual local governments in which the dispute arises.
JeFFRey F. BARR is a Deputy City Attorney in the Civil Division for the City of North Las Vegas.
1 See Clark County Liquor and Gaming Licensing Bd. v. Clark, 102 Nev. 654, 658, 730 P.2d 443, 446 (1986). 2 NRS 233B.031. 3 Anthony v. State, 94 Nev. 338, 343, 580 P.2d 939, 942 (1978); City of Reno v. Sabini, 83 Nev. 315, 319, 429 P.2d 559, 561-62 (1967). 4 City Council v. Travelers Hotel, Ltd., 100 Nev. 436, 439, 683 P.2d 960, 962 (1984) and NRS 233B.135(1)(b). 5 Stratosphere Gaming Corp. v. City of Las Vegas, 120 Nev. 523, 528, 96 P.3d 756, 760 (2004) and NRS 233B.135(3)(e). 6 State v. Hilton Hotels Corp., 102 Nev. 606, 608, 729 P.2d 497, 498 fn.1 (1986) and NRS 233B.135(3). 7 In one fairly well-cited case, for example, the Nevada Supreme Court imprecisely referred to the Las Vegas City Commission as an “administrative body.” State ex rel. Johns v. Gragson, 89 Nev. 478, 483, 515 P.2d 65, 68 (1973). See also, TIMET of America v. Clark Co. Dist. Bd. of Health Air Pollution Hearing Board, 99 Nev. 397, 399, 663 P.2d 355, 357 (1983); Revert v. Ray, 95 Nev. 782, 787, 603 P.2d 262, 265 (1979) 8 See e.g., Consolidated Municipality of Carson City v. Lepire, 112 Nev. 363, 365, 914 P.2d 631, 635 (1996). 9 One of those rare exceptions, for example, occurs in NRS 278.3195 which grants the right to judicial review of land use and zoning decisions. 10 Wayment v. Holmes, 112 Nev. 232, 912 P.2d 816 (1996); Bloom v. So. Nev. Mem. Hospital, 70 Nev. 533, 275 P.2d 885 (1954); McKay v. Washoe Gen’l Hospital, 55 Nev. 336, 33 P.2d 755 (1934); Schneider v. Elko Co. Sheriff’s Dept., 17 F. Supp.2d 1162 (D. Nev. 1998); and Cerros v. North Las Vegas Police Dept., 2008 WL 608641 at *9 (D. Nev. 2008). 11 For contractual claims, see L-M Architects, Inc. v. City of Sparks, 100 Nev. 334, 336, 683 P.2d 11, 12 (1984) (contractual claims). For tort claims, see Boulder City v. Miles, 85 Nev. 46, 49, 449 P.2d 1003, 1005 (1969); Barney v. County, 80 Nev. 104, 107, 389 P.2d 392, 394 (1964). But see, Turner v. Staggs, 89 Nev. 230, 235-36, 510 P.2d 879, 882-83 (1973). 12 See Agost v. Idaho, 423 U.S. 993 (1975). 13 Kay v. Nunez, 122 Nev. 1100, - -, 146 P.3d 801, 805 (2006). 14 E.g., Stratosphere Gaming Corp. v. City of Las Vegas, 120 Nev. 523, 528-29, 96 P.3d 756, 760 (2004) (internal quotations and citations omitted); see also, State v. Hilton Hotels, Corp., 102 Nev. 606, 608, 729 P.2d 497, 498 fn. 1 (1986) (first defining “substantial evidence”). 15 Hilton Hotels, Corp., 102 Nev. at 608 fn. 1. 16 See Nevada Contractors v. Washoe County, 106 Nev. 310, 313, 792 P.2d 31, 33 (1990) (internal quotations and citations omitted). 17 See City Council v. Traveler’s Hotel, Ltd., 100 Nev. 436, 438-39, 683 P.2d 960, 961 (1984).
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