16 Nevada Lawyer July 2011

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

JuDiCial review of muniCiPal DeCisionsFOUR PITFALLS TO AVOID

BY JEFFREY F. BARR, ESQ.

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.

July 2011 Nevada Lawyer 17

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.

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.

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,

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: 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

continued on page 18

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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.

18 Nevada Lawyer July 2011

continued from page 17

FOUR PITFALLS TO AVOID

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,102Nev.654,658,730P.2d443,446(1986).

2 NRS233B.031.3 Anthony v. State,94Nev.338,343,580P.2d939,942(1978);City

of Reno v. Sabini,83Nev.315,319,429P.2d559,561-62(1967).4 City Council v. Travelers Hotel, Ltd.,100Nev.436,439,683P.2d

960,962(1984)andNRS233B.135(1)(b).5 Stratosphere Gaming Corp. v. City of Las Vegas,120Nev.523,

528,96P.3d756,760(2004)andNRS233B.135(3)(e).6 State v. Hilton Hotels Corp., 102Nev.606,608,729P.2d497,498

fn.1(1986)andNRS233B.135(3).7 Inonefairlywell-citedcase,forexample,theNevada

SupremeCourtimpreciselyreferredtotheLasVegasCityCommissionasan“administrativebody.”State ex rel. Johns v. Gragson,89Nev.478,483,515P.2d65,68(1973).See also, TIMET of America v. Clark Co. Dist. Bd. of Health Air Pollution Hearing Board,99Nev.397,399,663P.2d355,357(1983);Revert v. Ray,95Nev.782,787,603P.2d262,265(1979)

8 See e.g., Consolidated Municipality of Carson City v. Lepire,112Nev.363,365,914P.2d631,635(1996).

9 Oneofthoserareexceptions,forexample,occursinNRS278.3195whichgrantstherighttojudicialreviewoflanduseandzoningdecisions.

10 Wayment v. Holmes,112Nev.232,912P.2d816(1996);Bloom v. So. Nev. Mem. Hospital, 70Nev.533,275P.2d885(1954);McKayv.WashoeGen’lHospital,55Nev.336,33P.2d755(1934);Schneider v. Elko Co. Sheriff’s Dept.,17F.Supp.2d1162(D.Nev.1998);andCerros v. North Las Vegas Police Dept., 2008WL608641at*9(D.Nev.2008).

11 Forcontractualclaims,see L-M Architects, Inc. v. City of Sparks, 100Nev.334,336,683P.2d11,12(1984)(contractualclaims).Fortortclaims,see Boulder City v. Miles,85Nev.46,49,449P.2d1003,1005(1969);Barney v. County, 80Nev.104,107,389P.2d392,394(1964).But see, Turner v. Staggs,89Nev.230,235-36,510P.2d879,882-83(1973).

12 See Agost v. Idaho,423U.S.993(1975).13 Kay v. Nunez,122Nev.1100,--,146P.3d801,805

(2006).14 E.g., Stratosphere Gaming Corp. v. City of Las Vegas,

120Nev.523,528-29,96P.3d756,760(2004)(internalquotationsandcitationsomitted);see also, State v. Hilton Hotels, Corp.,102Nev.606,608,729P.2d 497, 498 fn. 1 (1986) (first defining “substantial evidence”).

15 Hilton Hotels, Corp., 102Nev.at608fn.1.16 See Nevada Contractors v. Washoe County, 106Nev.

310,313,792P.2d31,33(1990)(internalquotationsandcitationsomitted).

17 See City Council v. Traveler’s Hotel, Ltd.,100Nev.436,438-39,683P.2d960,961(1984).