FILED

Electronically
CV20-00253
2021-12-23 07:33:46 PM
Alicia L. Lerud
1 3060
Clerk of the Court
Transaction # 8812908
2
3
4
5
6 IN THE SECOND JUDICIAL DISTRICT COURT OF
7 THE STATE OF NEVADA IN AND FOR THE
COUNTY OF WASHOE
8
9 STAN LUCAS, an individual, and D. FRED Case No.: CV20-00253
ALTMANN,
10 Dept. No: 1
Petitioners,
11 vs.
12
CITY OF RENO, a political subdivision of the
13 State of Nevada,
14
Respondent.
15
16 ORDER GRANTING SUPPLEMENTAL PETITION FOR JUDICIAL REVIEW
17 Currently before the Court is a Supplemental Petition for Judicial Review Pursuant to NRS
18 278.0233 and NRS 278.0237 (“Supplemental Petition” or “Suppl. Pet.”) filed by Stan Lucas and
19 D. Fred Altmann (“Petitioners”) on March 30, 2021. On June 14, 2021, Petitioners filed their
20 Opening Brief in Support of the Supplemental Petition for Judicial Review Pursuant to NRS
21 278.0233 and NRS 278.0237. Respondent City of Reno (“City”) filed its Answering Brief –
22 Supplemental Petition on July 14, 2021. On August 9, 2021, Petitioners filed their Reply Brief in
23 Support of the Supplemental Petition for Judicial Review Pursuant to NRS 278.0233 and NRS
24 278.0237. The Court heard oral argument on September 27, 2021.
25 Upon careful review of the record, written briefs, and oral argument, the Court finds good
26 cause to grant the Supplemental Petition.
27 ///
28 ///

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 1 I. BACKGROUND
2 This proceeding was initially commenced by Petitioners on February 10, 2020, challenging
3 the decisions of the Planning Commission and City Council (“Council”) to deny land use applications

4 (the “Application”) for approximately 955 acres of land in west Reno owned by Stan Lucas (the

5 “Lucas Property”). Petition for Judicial Review Pursuant to NRS 278.0233 and Declaratory Relief

6 (“Petition”), ¶ 2; see also R0019. 1 The Lucas Property, along with a number of other properties,

7 was originally annexed into the City in 2001, as result of a Settlement Agreement signed by a

8 number of parties, including the City, in Case No. CV02-03469 on November 8, 2002. R1138;

9 R2257. 2 According to the Settlement Agreement, the parties agreed to “recognize the

10 annexation” of certain properties in the City. R2251. The owners of those properties, in turn,

11 indicated they intended to “seek and objectively justify an increase in zoning” through a “zoning

12 amendment or other applicable application.” R2251. The “maximum density and density

13 distribution [to be] eligible for consideration during the term of [the Settlement Agreement]”

14 would include “[u]p to 3,000 residential units.” R2251.

15 The criteria used to determine “appropriate density and density distribution” would

16 include consideration of “natural constraints in slopes,” “availability of water resources and water

17 delivery systems,” “impacts on traffic [and] congestion on the existing Verdi community,”

18 “delivery of services, including fire,” and the “impact of future development in the requested

19 densities on adjacent communities.” R2252. In “conjunction with any [such] zoning increase,”

20 the property owners would process a “Development Standards Handbook” to be “recorded and

21 run with the land” (“Handbook”). R2252-R2253. Thereafter, the property owners could “submit

22 applications” to the City to “develop their respective properties consistent with the [Handbook]

23 (i.e., tentative maps, special use permits, etc.).” R2253. The Settlement Agreement states it “will

24
25
1
The citations to the record on appeal refer to the bates-stamped pages R0001-R1336 and R2105-R2134 filed on
26 April 15, 2020, Notice of Transmission of Record on Appeal (April 15, 2020) (“Notice of Record”), and the bates-
stamped pages R7053-R8697 filed April 30, 2021. Notice of Transmission of Record on Appeal (April 30, 2021).
27 2
A copy of the 2002 Settlement Agreement is included in Exhibit 1 to the Petition. R2248-R2257. The document,
however, is not part of the administrative record in this case. This Court’s decision only relies on the administrative
28 record in this case. See City of Reno v. Reno Police Protective Ass’n, 118 Nev. 889, 899, 59 P.3d 1212, 1219 (2002).

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 1 terminate ten years from the date it takes effect . . ..” R2256. Once recorded, the Handbook
2 would “run with the land for the term of the [Settlement Agreement].” R2252-R2253.
3 In 2004, the City amended its zoning code to adopt the Mortenson-Garson Overlay
4 District (“MGOD”). R0240. The provisions of that zoning code amendment are codified at RMC
5 § 18.08.406(i). The MGOD defines three separate planning areas (Planning Areas 1, 2 & 3).
6 RMC § 18.08.406(i)(1). The Lucas Property is in Planning Area 1, which has a “residential
7 development potential” of “676 units.” Id. at Table 18.08-46 (Parcel Data), Figure 18.08-44
8 (Vicinity Map), Table 18.08.48 (Residential Development Potential by Planning Area). Planning
9 Area 1 depicts areas zoned as SF-6 (Yellow) and OS (Green). Id. at Figure 1-2 (Land Use Plan);
10 R0020. SF-6 zoning allows for one single-family unit on a 6,000 square foot lot. RMC §
11 18.08.101(a), Table 18.08-1 (Base Zoning District Names and Abbreviations). OS zoning
12 signifies “permanent open space” restricted to uses “directly related to the open space function of
13 the land, are necessary to provide community services, or are necessary for the health, safety or
14 welfare of the public.” § 18.08.406(e)(1).
15 The Application requested approval of a proposed residential subdivision comprised of
16 676 new homes. R0019, R1353. The Lucas Property is located north of U.S. Highway 40 West
17 and to the west of Del Webb Parkway in Somersett. R0019. The Application included a request
18 for approval of a tentative map to subdivide and develop the property, as well as associated
19 special use permits (“SUPs”) for grading (“cuts and fills”), hillside development, and disturbance
20 of major drainageways. R0019, R1353, R1346. Following the City’s denial of the Application,
21 Petitioners filed the Petition for Judicial Review with this Court on February 10, 2020. Id. at 1.
22 On November 9, 2020, following briefing and oral argument, this Court issued its Order
23 Granting Petition for Judicial Review (“Remand Order”), remanding the matter back to the
24 Council as follows:
25 1. The Applications must be reviewed, processed, and considered under
the MGOD Ordinance, RMC §18.08.406(i)(1-15), as it existed at the time the
26 Application was filed.
27 ///
28 ///

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 1 2. To the extent the MGOD is determined to be unclear or ambiguous, as
recommended in the Staff Report, the Planning Commission and the City Council
2 should refer to the Handbook for background history and intent.
3 3. The Planning Commission and the City Council’s findings pursuant to
NRS 278.349(3) or RMC §18.06.405(e)(1), whether or not in support of the
4
Application, must be in compliance with the requirements of the MGOD ordinance
5 and must be supported by substantial evidence.

6 Remand Order, at 9-10.

7 On March 10, 2021, the Council conducted its hearing pursuant to the Remand Order.
8 R7059. Prior to the hearing, the City’s development staff (“Staff”) issued its report to Council
9 dated March 10, 2021 (“Staff Report”). R7060-78. The Staff Report noted that Petitioners had
10 proposed modifications to the lot layout that included reducing the overall development from 676
11 to 632 lots, removing all lots from the only two significant ridgelines in the Lucas Property, and
12 providing an emergency fire access road to the northeast of the property to address additional fire
13 access and fire protection. R7061-62; R7079. The Staff Report recommended Conditions 23-26
14 be added if the Council decided to approve the project with the modified Site Plan. 3 R7062-63.
15 The additional conditions included:
16 • Condition #23 – Prior to approval of the first final map, the applicant shall
provide documentation of a recorded access easement through parcels 234-
17
700-11 and 234-700-07, for the purpose of the emergency fire access road.
18 The 376th certificate of occupancy shall not be issued until the northern
secondary remote emergency access has been constructed, to the approval
19 of the Fire Department.
20 • Condition #24— The north emergency access road shall be designed and
installed per section 503 of the 2018 International Fire Code. The road shall
21 be maintained at all times by a Home Owners Association (“HOA”),
including snow removal. If a security gate is installed to limit public
22 access, then a “Click 2 Enter” electric gate operator shall be installed to
23 allow quick emergency response from Station 19 (2015 Hawk Meadow
Trail).
24 • Condition #25—Amendment table 903.2.2 to International Fire Code (IFC)
section 903.2 requires residential sprinkler systems to be installed to any
25 occupancy outside of six minutes response time from the closest fire
26 station. Response time calculations utilizing Station 19 to forgo sprinkler

27
3
This Court previously observed that Conditions 1-22 were included in the original Staff Report. Remand Order, p.
28 3 (citing R1134-54).

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 1 requirements will only be allowed when the north emergency access road is
constructed.
2 • Condition #26 – A note shall be placed on all grading plans, site
3 improvement plans and final maps that if human remains, human barriers
or burial cairns are disturbed or identified during any construction, all work
4 in the immediate vicinity must cease, the discovery must be secured, and
the party responsible for the construction must immediately contact both
5
the appropriate law enforcement and State Historic Preservation office per
6 NRS 383.170.1(a). If bones are uncovered while digging, there shall be no
attempt to excavate the materials but the site shall be secured with
7 immediate contact of both the appropriate law enforcement and the State
Historic Preservation Office. Failure to provide notice to the State Historic
8
Preservation Office of a discovery of an Indian burial is a violation of state
9 law and can result in criminal penalties under NRS 383.180.2.

10 R7062. 4
11 At the hearing, Staff presented an overview of the Remand Order and highlighted certain
12 elements of the MGOD Ordinance. Transcript March 10, 2021, Reno City Council Meeting
13 (“Transcript” or “Tr.”) at 14:7-17:19. Angela Fuss, Assistant Community Development Director
14 for the City of Reno provided a history of the MGOD, and an overview of how development is to
15 occur with respect to ridgelines, grading, open space, traffic and infrastructure. Id. at 19:8-16;
16 20:13-19; 20:24-21:4; 21:1-4; 21:8-22:22; 23:6-26:24. Petitioners then presented their case in
17 support of the Application. Id. at 28:22-38:3. R7886-92.
18 The Council then commenced its deliberations. Councilmember Jardon asked Ms. Fuss to
19 confirm that there were two significant ridgelines proposed within the Lucas Property and no
20 homes would be built on them. Id. at 40:10-15. Ms. Fuss confirmed that all the homes originally
21 planned for the two ridgelines identified in the MGOD as significant, had been removed. Id. at
22 40:17-41:1; R8669. Next, Councilmember Reese specifically referred to the numerous
23 subsections that were set forth in “RMC 18.06.406” 5 which address minimizing impacts, stating
24 that he did not “understand what determines the prominence of ridgelines, significance of view
25 sheds or visually prominent rock outcroppings.” Id. at 42:20-43:5. Ms. Fuss responded that Staff
26
27 4
Petitioners had no objection to the inclusion of Conditions #23-26 as part of approval of the Tentative Map. Suppl.
Pet. at 12:17-21.
28 5
The MGOD is codified at RMC 18.08.406.

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 1 requires an applicant to submit a constraints map that shows ridgelines, fault lines, easements,
2 drainage ways, wetland corridors, wildlife corridors, rock outcroppings, as well as anything else
3 that is identified as a constrained area listed in the MGOD. Id. at 43:7-16. She further stated that
4 Petitioners put together the required map which Staff reviewed to ensure that Petitioners were
5 following the guidelines and staying out of sensitive areas. Id. at 43:17-44:5. Ms. Fuss further
6 provided that based on the lot configuration that Petitioners provided, Staff set forth conditions,
7 but “the general Site Plan, in staff’s opinion, met all those guidelines.” Id. at 44:6-10. When
8 Councilmember Reese followed up by indicating that the Site Plan had 20 homes planned on the
9 steeper slopes, Ms. Fuss stated that the MGOD does not prohibit development in those areas. Id.
10 at 44:11-45:3.
11 Upon questioning from Councilmember Duerr, Ms. Fuss confirmed that the Petitioners
12 had identified their wildlife corridors and were now required to work with NDOW to develop a
13 mitigation plan, which does not have to happen at the time of the tentative map but will happen
14 before approval of the final map. Id. at 65:18-24. Ms. Fuss also addressed Councilmember
15 Duerr’s question about traffic related to the Lucas Property. Id. at 66:1-5. Ms. Fuss stated that
16 the Petitioners had provided a traffic study showing the average daily trips are “within the levels”
17 consistent with the MGOD and that Staff had required that with each final map, the Petitioners
18 provide an updated traffic study. Id. at 66:6-11. In response to Councilmember Duerr’s question
19 about freeway access, Ms. Fuss stated that the access from the Lucas Property is off Highway 40,
20 for which the Petitioners had provided an analysis, indicating that no improvements to
21 intersections or on-ramps would be required. Id. at 67:7-11. Ms. Fuss indicated that two
22 representatives from NDOT were present at the meeting to respond to questions. Id. at 67:9-11.
23 However, the NDOT representatives were not asked any questions by the Councilmembers.
24 Councilmember Reese and Mayor Schieve posed questions to Tray Palmer, Fire Marshall
25 for the Reno Fire Department about the requirement for sprinklers in the homes. Id. at 74:5-13;
26 77:9-78:11. Fire Marshall Palmer indicated that the homes on the Lucas Property would require
27 sprinklers since they were outside the six-minute response time from the closest fire station,
28 which is Station 11 on the corner of Sharlands and Mae Anne Avenue, which is fully staffed and

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 1 eight minutes from the southside of the development. Id. at 75:17-22. Fire Marshall Palmer
2 further stated that once the proposed connection is made on the north side of the development,
3 Station 19 would be the closest and the sprinkler mandate would end. Id. at 75:20-76:4. Fire
4 Marshall Palmer indicated that Station 19 is only a two-man crew, but that when financial
5 constraints are lifted, it would be a fully staffed four-person crew again, but the timing was not
6 guaranteed. Id. at 78:22-79:5. He further stated that his concerns with respect to opening the gate
7 on the north emergency access road would be addressed if the gate was equipped with a “clip to
8 enter system” which would allow the fire engine to remotely open the north access gate to reduce
9 delays. Id. at 79:6-19. Mr. Palmer also stated that the Petitioners would have to follow state
10 regulations for a wildlife urban interface area and develop a vegetation management plan that the
11 homeowner’s association would have to comply with to address anticipated fire behavior given
12 the topography of the Lucas Property. Id. at 80:2-14.
13 Councilmember Jardon then proposed additional conditions that would attach to approval
14 of the tentative map, noting that the most controversial condition was that there be a 150-foot
15 buffer or setback between the Lucas Property boundary and the existing Somersett development.
16 Id. at 81:16-20. Councilmember Duerr then asked Ms. Fuss to address the ridgeline development
17 again. Id. at 87:13-19. Ms. Fuss first addressed one of the two significant ridgelines and stated
18 that Petitioners had agreed to remove all 26 homes as a condition of approval. Id. at 88:17-89:2.
19 Ms. Fuss further confirmed that Petitioners had stayed away from rock outcroppings, kept houses
20 out of drainage areas and had planned crossings of certain drainage ways. Id. at 90:7-18.
21 Mr. Tom Gallagher on behalf of Petitioners, then indicated that Petitioners would agree to
22 the 150-foot setback from the Somersett boundary, acknowledging that the lots that would be lost
23 could be distributed throughout the rest of the development. Id. at 95:15-19. Mr. Gallagher
24 further indicated that Petitioners could agree to the rest of Councilmember Jardon’s conditions,
25 with the exception of the having stakeholders approve the final maps. Id. at 95:20-23. 6
26 ///
27
6
After significant discussion among the Council and Petitioners, the language of this condition was resolved and
28 Petitioners agreed to it.

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 1 Councilmember Duerr asked if any of Staff’s conditions addressed the 30 percent slopes.
2 Id. at 133:12-14. Ms. Fuss indicated that it was not in any of the conditions, but that Council
3 could add that. Id. at 133:15-16. Councilmember Duerr deferred to Councilmember Jardon who
4 stated that Ms. Fuss had indicated that development on the 30 percent slopes was allowed. Id. at
5 133:21-24. Councilmember Duerr indicated that “our other code” is very limiting with respect to
6 30 percent slopes, but Ms. Fuss stated “[a]gain, MGOD is the very specific language that trumps
7 the code. So there’s a discrepancy between what the code says and the MGOD says, we need to
8 follow the MGOD.” Id. at 134:1-14. As to development at the higher elevations, Councilmember
9 Jardon then stated “I’m going to say I look to the Cliffs, probably the highest point of
10 construction in all of Somersett. I don’t believe there’s any development suggested in this project
11 that exceeds that elevation. So it would be tough for me to come forward and say, ‘Hey, the
12 Cliffs over here is all right but over here it is not.’” Id. at 135:11-19.
13 Following public comment, Councilmember Jardon moved to approve the tentative map
14 and the special use permit, indicating that she could make all the required findings listed in the
15 Staff Report, subject to the conditions stated in the Staff Report as amended. Id. at 145:9-15.
16 Councilmembers Brekhus and Duerr stated their inability to support the motion, citing among
17 their concerns, the adequacy of fire protection services for a proposed residential subdivision in a
18 hillside area with slopes greater than 30 percent. In this regard, Councilmember Brekhus stated
19 her findings as follows:
20 [T]he Council determines that the closest station is not presently staffed for
firefighting capacity. The Council finds that the property conditions at the edge of
21 the region’s built footprint at an unprecedented elevation upon the Peavine
22 Mountain flank combined with canyon and ridgelands prone to quick fire travel
pose public safety risk that is beyond the City’s capacity to serve. The Council is
23 in the process of pursuing a federal grant that may result in the staffing of the
station but it will not be known for at least one year if that will result in this
24 enhanced service level.
25 Id. at 146:16-147:7. In addition, Mayor Schieve stated her concerns regarding the adequacy of fire
26 protection indicating that she could not make Finding J because of concerns with fire access,
27 staffing the fire station and the eight-minute response time. Id. at 150:1-151:8. Councilmember
28 Jardon’s motion to approve the Application failed. Id. at 150:13-15.

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 1 Councilmember Reese then made a motion to deny the Application (“Motion”) as follows:
2 I moved to affirm the decision of the Planning Commission and deny the appeal
based on the site plan not meeting the following MGOD standards related to
3 protection of significant natural features and development on slopes greater than
4 30 percent. I will reference for any reviewing it the RMC code 18.06.406
Subsection I5 A8, I5 F8 and I5 G4. 7
5
The Site Plan includes road crossings and grading within significant natural
6 features including major drainage ways and wetlands. The Site Plan also includes
7 over 20 lots located in areas with slopes deeper than 30 percent and the site plan
includes development in areas where significant – inaudible -- negatively
8 impacting the visual value and scenic character of the hillside areas.
9
My motion to deny would also include all of the reasons identified by Council
10 Member Brekhus and also by Madame Mayor Schieve, her concerns over fire
related service issues into the project.
11
12 Id. at 151:17-152:18.
13 On March 16, 2021, the Council issued its decision letter (“Decision Letter”) indicating
14 that the Site Plan was not in conformance with the MGOD as follows:
15 • RMC 18.06.406(i)(5)(a)(8) 8: Minimizing impacts on prominent ridgelines,
significant view sheds, canyons and visually prominent rock outcroppings
16 which reflect the visual value and scenic character of hillside areas.
17 • RMC 18.06.406(i)(5)(f)(8): Significant features shall be protected and
preserved where appropriate and feasible including, but not limited to,
18 ridgelines, canyons, ravines, streams and creeks, natural drainages and
outcroppings.
19
• RMC18.06.406(i)(5)(g)(i) and (iv) 9: Mass grading in areas of 30 percent or
20 greater slope shall be avoided unless associated with access, utilities or is in
an isolated area not a part of a larger hillside, or significant ridgeline; and
21
22 ///

23
24 7
This reference to RMC 18.06.406 is in error. The MGOD has been codified at RMC 18.08.406. Further, the RMC
reflects that the reference to “I5 G4” should be RMC 18.08.406 (i)(5)(g)(1)(iv).
25 8
All references in the Decision Letter to RMC 18.06.406 pertaining to the MGOD are in error. The MGOD has been
codified at RMC 18.08.406.
26 9
The reference to RMC 18.06.406(i)(5)(g)(i) is in error and should be RMC 8.08.406(i)(5)(g)(1)(i). The reference to
RMC 18.06.406(i)(5)(g)(iv) is in error and should be RMC18.08.406(i)(5)(g)(1)(iv). When making the Motion,
27 Councilmember Reese listed the specific sections of the RMC that the Site Plan did not conform to, which did not
include RMC 18.08.406(i)(5)(g)(1)(i). Accordingly, this Court limits the analysis to those RMC sections specifically
28 set forth in the Motion.

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 1 vi.- Grading in environmentally sensitive areas shall occur only when
necessary to protect, maintain, enhance or restore habitat. 10
2
3 Further, the decision letter provided that the City Council was unable to make the

4 following findings (“Findings”):

5 • Tentative Map Finding C - Availability and accessibility of utilities;

• Tentative Map Finding D - Availability and accessibility of public services
6 such as schools, police protection, transportation, recreation and parks;
7 • Tentative Map Finding J - Availability and accessibility of fire protection,
including but not limited to, the availability and accessibility of water and
8 services for the containment of fires, including fires in wild lands; and
• General Special Use Permit Finding D – The proposal adequately mitigates
9 traffic impacts of the project and provides a safe pedestrian environment.
10 • Cut and Fill Finding B – The grading is necessary to provide safe and
adequate access to the development.
11
12 On March 30, 2021, Petitioners filed their Supplemental Petition, requesting this Court
13 judicially review the City’s determination on remand, and order the City to “approve the
14 Tentative Map with the conditions recommended by Staff in its Staff Report of March 10, 2021.”
15 Suppl. Pet., at 23.
16 II. STANDARD OF REVIEW
17 NRS 278.3195(1) entitles a person who is aggrieved by a decision of the Planning
18 Commission to appeal that decision to the City Council; NRS 278.3195(4) permits a person to
19 challenge the decision of the City Council by “filing a petition for judicial review” in the district
20 court. In evaluating such a petition for judicial review, the district court must determine whether,
21 based on the record made before the City Council, substantial evidence supports the decision.
22 Kay v. Nunez, 122 Nev. 1100, 1105, 146 P.3d 801, 805 (2006). “Substantial evidence is that
23
24 10
The Decision Letter correctly lists RMC18.0[8].406(i)(5)(g)(1)(iv) at the outset, as that is the subsection to which
the Motion referred. However, the actual text listed in the Decision Letter pertains to subsection
25 RMC18.0[8].406(i)(5)(g)(1)(vi), namely, “[g]rading in environmentally sensitive areas shall occur only when
necessary to protect, maintain, enhance or restore habitat.” This is in error. Consistent with the Motion, the text of
26 subsection (iv) not (vi) should have been set forth in the Decision Letter as follows:
27 Grading of knolls, ridgelines or toes of slopes shall be rounded to conform with the natural grades
and to provide a smooth transition to the natural slope.
28

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 1 which a reasonable mind could accept as sufficient to support a conclusion[,]” and a reviewing
2 court “will not substitute its judgment for that of a municipal entity if substantial evidence
3 supports the entity’s action.” City of Reno v. Citizens for Cold Springs, 126 Nev. 263, 271, 236
4 P.3d 10, 15-16 (2010). 11
5 While the decision to grant or deny a use permit is a discretionary act, which should be
6 upheld if supported by substantial evidence, see id., an abuse of discretion can occur where a
7 discretionary decision disregards controlling law, see MB Am., Inc. v. Alaska Pac. Leasing, 132
8 Nev. 78, 88, 367 P.3d 1286, 1292 (2016). And “questions of law are reviewed de novo.” Bullock
9 v. Pinnacle Risk Mgmt., 113 Nev. 1385, 1388, 951 P.2d 1036, 1038 (1997).
10 In remanding the matter, this Court ruled that controlling law in this case is the MGOD
11 Ordinance as it existed at the time the Application was filed. Remand Order, at 9. This Court also
12 ruled that to the extent the MGOD is unclear or ambiguous, the Handbook should be consulted for
13 background history and intent. Id.
14 III. ANALYSIS
15 The Motion was based in part on the Site Plan not meeting RMC 18.08.406(i)(5)(a)(8),
16 (i)(5)(f)(8), (i)(5)(g)(1)(iv) as follows: the Site Plan 1) “includes road crossings and grading
17 within significant natural features including major drainage ways and wetlands”; 2) “includes
18 over 20 lots located in areas with slopes deeper than 30 percent”; and 3) “development in areas
19 where significant – inaudible -- negatively impacting the visual value and scenic character of the
20 hillside areas”. Tr. at 151:17-152:18. The Motion lists three nonconforming criteria but did not
21
22 11
In Stratosphere Gaming Corp. v. City of Las Vegas, the Nevada Supreme Court held that “substantial and specific”
public opinion could constitute substantial evidence to support a local government’s decision to deny a request for a
23 special use permit. 120 Nev. 523, 529-30, 96 P.3d 756, 760-61 (2004) (citing City of Las Vegas v. Laughlin, 111
Nev. 557, 559, 893 P.2d 383, 385 (1995). While the Council heard public comment at the March 10, 2021 hearing,
24 the Transcript from the hearing reveals no reference to or reliance on those comments by the Council in rendering its
decision. See generally Transcript. Further, the Decision Letter does not state that the Council relied upon or
25 supported any of their findings with public comment. See generally Decision Letter. What’s more, at the hearing
conducted by this Court on September 27, 2021, the City did not present evidence or argument that referred to or
26 relied upon public comment in support of upholding the Council’s decision. Accordingly, this Court does not
undertake consideration of the comments. The alternative would be for this Court to sift through the public
27 comments and attempt to assume applicability to the Council’s decision, which this Court declines to do given
Council’s lack of reliance on the same.
28

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 1 state which section or sections of the RMC they pertain to. Accordingly, this Court evaluates
2 each of the three RMC sections for nonconformance related to the three criteria. Thereafter, this
3 Court evaluates each of the Findings set forth in the Decision Letter.
4 a. RMC 18.08.406(i)(5)(a)(8)
5 RMC 18.08.406(i)(5)(a)(8) provides:
6 (5) Hillside Development.
a. Purpose. The purpose of this subsection is to regulate hillsides in a manner
7
different from regulation of flat terrain. This subsection establishes
8 provisions for developing, preserving and protecting hillsides and
ridgelines with the intent of protecting the public health, safety and welfare
9 by:
10 * * *
8. Minimizing impacts on prominent ridgelines, significant viewsheds,
11 canyons and visually prominent rock outcroppings which reflect the
visual value and scenic character of hillside areas.
12
13 (Emphasis added.)

14 The code is clear that hillside and ridgeline development in the MGOD is permitted. 12
15 However, to comply with RMC 18.08.406(i)(5)(a)(8), the Application must demonstrate
16 “minimization of impacts on prominent ridgelines, significant viewsheds, canyons and visually
17 prominent rock outcroppings which reflect the visual value and scenic character of hillside areas.”
18 RMC 18.08.406(i)(5)(a)(8). Neither the Motion nor the discussion that preceded the Motion
19 reflect consideration or balancing of the minimization of impacts undertaken by Petitioners.
20 Instead, the Motion relies exclusively on the existence of “over 20 lots located in areas with
21 slopes deeper than 30 percent” and the existence of development that effects the “visual value and
22 scenic character of the hillside areas” to establish nonconformance with 18.08.406(i)(5)(a)(8)
23 without undertaking the analysis required by the RMC. “The exercise of discretion by the city
24 council as an administrative board could not be sustained in court on the basis of conclusions
25 reached by the city council in the absence of circumstances which reasonably justified such
26
12
On several occasions at the March 10, 2021 hearing, Ms. Fuss directly addressed the ability pursuant to MGOD, to
27 develop on hillsides and ridgelines, e.g. “I mean, it does not prohibit development on ridgelines and it does not
prohibit development on significant ridgelines. I think we need to make that very clear for everyone to understand.”
28 Tr. at 21:8-13.

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 1 conclusions.” City Council of the City of Reno v. Travelers Hotel, Ltd. 100 Nev. 436, 439, 683
2 P.2d 960, 962 (1984) (citing Henderson v. Henderson Auto, 77 Nev. 118, 359 P.2d 743 (1961);
3 see also Stratosphere Gaming Corp., at 528, 96 P.2d at 760 (stating substantial evidence is that
4 which a reasonable mind might accept as adequate to support a conclusion); City of Reno v.
5 Citizens for Cold Springs, 126 Nev. 263, 277, 236 P.3d 10, 18-19 (2010) (holding a city council is
6 not required to set forth detailed reasons, but the findings of fact should not be broad evasive
7 conclusions).
8 RMC 18.08.406(i)(5)(a)(8) acknowledges that impacts will occur to prominent ridgelines,
9 significant view sheds and visually prominent rock outcroppings, but permits development if
10 impacts are minimized. The ability to develop on slopes greater than 30 percent as allowed by the
11 MGOD, arose several times at the hearing. 13 Ms. Fuss was asked to confirm that there were two
12 “significant ridgelines” identified in the MGOD within the Lucas Property. Tr. at 40:10-15. Ms.
13 Fuss confirmed this. Id. at 40:17-41:1. She further confirmed that as a condition of approval,
14 Petitioners had agreed to remove all 26 homes planned for one of the significant ridgelines,
15 removal and/or reconfiguration of an additional 23 lots on the southeast ridgeline, and that no
16 homes would be built on either of the significant ridgelines as a result; further, that Petitioners had
17 agreed to reduce the total number of homes in the development by 44 units from the MGOD
18 allowed maximum of 676 to 632. Id. at 23:10-15; 88:17-89:2. R8674-R8675. Ms. Fuss further
19 confirmed that Petitioners had stayed away from rock outcroppings and kept houses out of
20 drainage areas. Id. at 90:7-18.
21 When asked about the specific subsections of RMC 18.08.406 pertaining to minimizing
22 impacts on prominent ridgelines, significant viewsheds, canyons and visually prominent
23 outcroppings, Ms. Fuss responded that Staff requires an applicant to submit a constraints map that
24 shows ridgelines, fault lines, easements, drainage ways, wetland corridors, wildlife corridors, rock
25 outcroppings, as well as anything else that constitutes a constrained area listed in the MDOG. Id.
26 at 42:20-43:5; 43:7-16. She stated that Petitioners put together the required constraint map which
27
13
RMC 18.08.406(i)(5)(d)(3)(i) is clear that development on slopes greater than 30 percent, while considered “less
28 suitable” is not prohibited.

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 1 Staff reviewed to ensure that Petitioners were following the guidelines and staying out of
2 sensitive areas. Id. at 43:17-44:5. Ms. Fuss further provided that based on the lot configuration
3 that Petitioners provided, Staff set forth conditions, but “the general Site Plan, in staff’s opinion,
4 met all those guidelines.” Id. at 44:6-10. When Councilmember Reese followed up by indicating
5 that the Site Plan had 20 homes planned on the steeper slopes, Ms. Fuss stated that the MGOD
6 does not prohibit development in those areas. Id. at 44:11-45:3. Importantly, the 20 homes
7 planned on 30 percent slopes represents less than 3 percent of the total homes proposed for
8 construction on ridgelines; not prominent or significant ridgelines, just ridgelines. 14
9 The record demonstrates that Petitioners agreed to significant mitigation to include the
10 removal of 44 homesites and the removal and/or reconfiguration of 49 homes, resulting in no
11 construction occurring on significant ridgelines. Without question, conceding construction on the
12 two significant ridgelines and reducing the number of homes on 30 percent slopes to less than 3
13 percent of total homes planned, Petitioners minimized the impacts to prominent ridgelines,
14 viewsheds and prominent rock outcroppings as contemplated by 18.08.406(i)(5)(a)(8). Whether
15 the concessions and changes made by Petitioners was sufficient mitigation was never even
16 addressed by the Council. From the limited consideration given to conformance with RMC
17 18.08.406(i)(5)(a)(8), it is apparent that the existence of any development on slopes steeper than
18 30 percent and the existence of any impacts to the visual value and scenic character of the hillside
19 areas was grounds for nonconformance. 15 Accordingly, this Court finds that substantial
20 mitigation was offered by Petitioners in conformance with 18.08.406(i)(5)(a)(8); further that the
21 Motion lacked substantial evidence to support a lack of conformance with 18.08.406(i)(5)(a)(8) as
22
23
24
25
14
Notably, at the hearing, Councilmember Duerr asked if any of the Staff Report conditions addressed the 30 percent
26 slopes. Id. at 133:12-14. Ms. Fuss indicated that it was not in any of the conditions, but that Council could add that.
Id. at 133:15-16. No condition was offered by the Council to address the 30 percent slopes.
27 15
Confounding the finding of nonconformance is that regarding RMC 18.08.406 and its subsections, the Council
confirmed a lack of understanding about “what determines the prominence of ridgelines, significance of view sheds
28 or visually prominent rock outcroppings.” Id. at 42:20-43:5.

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 1 a reasonable person could not find this conclusion was supported by substantial evidence as the
2 Council did not consider the mitigation efforts mandated by RMC 18.08.406(1)(5)(8)(a). 16
3 b. RMC 18.08.406(i)(5)(f)(8)
4 RMC 18.08.406(i)(5)(f)(8) provides:
5
(5) Hillside Development
6 f. Site development standards. This subsection sets forth development
standards to address the physical and technical conditions unique to hillside
7 and ridgeline property within the MGOD. In case of conflict between the
8 provisions of this subsection and those of any other portion of Reno
Municipal Code, the provisions of this subsection shall prevail unless
9 otherwise determined by the director of community development, city
engineer, or designated staff from the appropriate fire protection agency.
10
* * *
11 8. Significant natural features. Significant natural features shall be
12 protected and preserved where appropriate and feasible including, but
not limited to, ridgelines, canyons, ravines, streams and creeks, natural
13 drainages and rock outcroppings.
14 (Emphasis added.)
15 Related to this section of the RMC, the Motion found nonconformance because “[t]he Site
16 Plan includes road crossings and grading within significant natural features including major
17 drainage ways and wetlands.” Simply stating that the Site Plan includes road crossings and
18 grading within natural features does not provide sufficient evidence to support a finding of
19 nonconformance with RMC 18.08.406(i)(5)(f)(8). There is no analysis or support for the
20 proposition that road crossings and grading within natural features is prohibited in the MGOD.
21 Incumbent on the Council was identification of ridgelines, canyons, ravines, streams and creeks,
22 natural drainages and rock outcroppings where impact was occurring and where protection and
23
24 16
Worth noting is that Petitioners’ Appeal Filing sets forth an exhaustive investigation undertaken by Petitioners for
the Lucas Property to ensure compliance with RMC 18.08.406(i)(5) to include a soils investigation by Summit
25 Engineering Corporation, a detailed grading plan, a detailed fault evaluation completed by Axion Consultants, a
master drainage analysis prepared by DEW Hydrology addressing drainage and flooding, the employment of
26 innovative design and grading techniques to preserve natural features and an open space environment, a wetlands
report prepared by JBR Environmental Consultants and updated by NAS Environmental Consultants. a biological
27 assessment addressing site vegetation and a Wildlife Mitigation Plan prepared by NAS Environmental Consultants.
R0032-R0054. None of these reports or plans were the subject of discussion by the Council at the March 10, 2021
28 hearing.

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 1 preservation were appropriate and feasible. RMC 18.08.406(i)(5)(f)(8). A statement by the
2 Council claiming the existence of these impacts as to ridgelines and wetlands does not satisfy the
3 code. The “substantial evidence requirement supporting such a decision is not met by statements
4 of counsel for interested parties (citations omitted) or opinions of council members, unsupported
5 by proof.” City Council of the City of Reno v. Travelers Hotel, Ltd. 100 Nev. 436, 439, 683 P.2d
6 960, 962 (1984); see also Stratosphere Gaming Corp., at 528, 96 P.2d at 760 (stating substantial
7 evidence is that which a reasonable mind might accept as adequate to support a conclusion).
8 The Council asked Ms. Fuss about RMC 18.08.406 and all of its subsections
9 acknowledging a lack of “understand[ing] [about] what determines prominence of ridgelines,
10 significance of view sheds or visually prominent rock outcroppings.” Id. at 42:20-43:5. Ms. Fuss
11 replied that the MGOD does not prohibit development in those areas; that Petitioners’ constraint
12 map addressed all of these area to include, “ridgelines, fault lines, easements, drainage ways,
13 wetland corridors, wildlife corridors, rock outcroppings, all of those things that are identified in
14 that sentence…that you just gave as well as anything else that’s really a constrained area listed in
15 the MGOD”; that Petitioners put together a map to show “how they’re building homes and
16 avoiding those areas”; that the MGOD is very explicit that “you can have roads crossing drainage
17 ways”; that Staff set forth conditions of approval, “but overall the general Site Plan, in Staff’s
18 opinion, met all those guidelines”. Id. at 43:6-44:10.
19 Ms. Fuss then explained the intent of the MGOD related to development of homes. The
20 “red area” on the Site Map represents slopes of over 30 percent and the question is whether the
21 development is “generally staying out of those areas.” Id. at 45. 11-14. (Emphasis added.) While
22 there may be a “little blob” of red slopes planned for development, “once you get passed that, you
23 have a lot of green slopes in the ten percent range.” Id. at 45:14-17. Further, she explained that
24 Staff’s interpretation of the code was that when the terrain dictated development in different
25 areas, it was not the intent of the code to “create three blobs of development with no way to
26 actually get to those developments, it was to actually come up with a constraint map and figure
27 out how you’re going to get to those areas generally staying within the parameters of not
28

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 1 developing in those constrained areas.” Id. at 46:1-7. She confirmed that Petitioners had done
2 that. Id. at 43:6-44:10.
3 The intent and specific language of the MGOD does not prohibit roads crossing drainage
4 ways. As Ms. Fuss explained, without the ability to cross drainageways, which undoubtedly
5 involves grading, the individual clusters of homes planned around the constraints would be
6 incapable of being connected to one another. Further, the drainage way crossings as proposed
7 “met all of the guidelines” confirming that Staff undertook whether these impacts were
8 “appropriate and feasible” as required by RMC 18.08.406(i)(5)(f)(8). The Council did not
9 undertake consideration of the specific impacts of the drainageway crossings, nor did they
10 identify impacts to significant natural features and evaluate whether they were appropriate and
11 feasible as Staff did. As to the Council’s evaluation of impacts to wetlands as set forth in the
12 Motion, the Transcript of the hearing reveals that wetlands were never specifically addressed.
13 However, “wetland corridors” were within the list of items set forth in Petitioners’ constraints
14 map and are therefore included in that category of impacts that met all of the guidelines according
15 to Staff. Accordingly, as to nonconformance with RMC 18.08.406(i)(5)(f)(8), a reasonable mind
16 could not find the decision of the Council was supported by substantial evidence. 17
17 c. RMC 18.08.406(i)(5)(g)(1)(iv)
18 RMC 18.08.406(i)(5)(g)(1)(iv) provides:
19
(5) Hillside Development
20
21
17
Notably, the Application seeks development in an area of southwest Reno where a significant number of homes
22 have already been constructed on similar terrain (to include steep elevations, drainageways, canyons and rock
outcroppings). In this vein, Councilmember Jardon noted that existing homesites at Somersett (which is directly
23 adjacent to the Lucas Property) are on ridgelines that are higher than those proposed for the Lucas Property and noted
the conflict in denying ridgeline construction on the Lucas Property. See Tr. at 135:11-19 (“I’m going to say I look to
24 the Cliffs, probably the highest point of construction in all of Somersett. I don’t believe there’s any development
suggested in this project that exceeds that elevation. So it would be tough for me to come forward and say, ‘Hey, the
25 Cliffs over here is all right but over here it is not.’”) A review of the Vicinity Map and Zoning Map for the project
reveals that Somersett is situated on terrain that appears identical to the Lucas Property with respect to elevation,
26 terrain, ridgelines, ravines, rock outcroppings, etc., yet development in both the lower and higher elevations in
Somersett is significantly denser and more expansive, to include drainageway crossings where a much larger number
27 of homes exist than what is proposed for the Lucas Property. R0019, R0020. The Somersett development and its
numerous phases were approved by the City Council. This comparison begs the question: Why is the Lucas Property
28 not the beneficiary of the Council’s precedent?

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 1 g. Grading and drainage standards. This subsection sets forth development
standards for grading of hillside and ridgeline properties.
2 1. Grading. These grading standards are
3 * * *
iv. Grading of knolls, ridgelines or toes of slopes shall be rounded to
4 conform with the natural grades and to provide a smooth transition to
5 the natural slope.

6 No discussion at the hearing occurred and no reference was made in the Motion regarding
7 grading of knolls, ridgelines or toes of slopes and whether they would be rounded to conform with
8 the natural grades and provide a smooth transition to the natural slope. Accordingly, the finding
9 of nonconformance with RMC 18.08.406(i)(5)(g)(1)(iv) was not supported by substantial
10 evidence as a reasonable mind could not find a decision is supported by substantial evidence if it
11 is never discussed.
12 d. Tentative map Finding C: Availability and accessibility of utilities.
13 NRS 278.349 requires a governing body, by an affirmative vote of a majority of all the
14 members, to approve, conditionally approve or disapprove a tentative map filed pursuant to NRS
15 278.330. NRS 278.349(1). When considering a tentative map, the governing body “shall
16 consider” the “availability and accessibility of utilities” (“Finding C”). NRS 278.349(3)(c). A
17 review of the March 20, 2021 hearing Transcript reveals that “utilities” was mentioned by the
18 Council only once and that reference did not concern the availability and accessibility of utilities
19 for the Lucas Property. Tr. at 71:5-9. The Council did state that Finding C could not be made
20 because the proposed public dedication of the street network poses a service burden upon the city,
21 such that “rip rapped earthen structures” and “soil and erosion conditions” were going to require
22 ongoing public maintenance. Id. at 147:1-8. While NRS Chapter 278 does not provide a
23 definition of “utilities,” a reading of the Chapter reveals a clear and continuing use of the term
24 “utilities” to refer to services made available to the public such as gas, water and electricity. See
25 generally NRS Chapter 278. Accordingly, the Council’s contention that Finding C could not be
26 made because of a “public maintenance” obligation did not address the specific requirements of
27 the statute. Therefore, the finding was not based upon substantial evidence.
28 ///

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 1 e. Tentative Map Finding D: Availability and accessibility of public service such
as schools, police protection, transportation and recreation.
2
3 NRS 278.349 provides that when considering a tentative map, the governing body “shall

4 consider” the “availability and accessibility of public services such as schools, police protection,

5 transportation, recreation and parks” (“Finding D”) NRS 278.349(3)(d). A review of the March

6 20, 2021 hearing Transcript reveals that availability and accessibility of public services such as

7 schools, police protection, transportation, recreation and parks was not discussed by the Council.

8 Accordingly, the determination that the Site Plan did not conform to Finding D was not based

9 upon substantial evidence. 18

10 f. Tentative Map Finding J: Availability and accessibility of fire

protection, including but not limited to, the availability and
11 accessibility of water and services for the prevention and containment
of fires, including fires in wild lands.
12
13 NRS 278.349 provides that when considering a tentative map, the governing body “shall

14 consider” the “availability and accessibility of fire protection, including but not limited to, the

15 availability and accessibility of water and services for the prevention and containment of fires,

16 including fires in wildlands.” NRS 278.349(3)(j) (“Finding J”). The Motion did not include

17 specific reference to fire issues but incorporated the comments of Mayor Schieve and findings of

18 Councilmember Brekhus regarding Finding J. Mayor Schieve stated her concerns related to fire

19 protection were staffing Station 19 and the eight-minute response time. Id. at 150:13-151:6.

20 Councilmember Brekhus made findings that 1) the closest fire station is not presently staffed for

21 firefighting capacity; and 2) the property conditions “at the edge of the region’s built footprint at

22 an unprecedented elevation upon the Peavine Mountain flank combined with canyon and

23 ridgel[ines] prone to quick fire travel pose public safety risk that is beyond the City’s capacity to

24 serve.” Id. at 146:16-147:8. This Court evaluates whether these comments and findings were

25 supported by substantial evidence.

26
27 18
While “transportation” was referenced at the hearing, it did not pertain to public transportation as mandated by
278.349(3)(d). Instead, the discussion concerned the easement through the West Meadows development which
28 provides access to the Lucas Property, and the absence of that easement on the Master Plan. Id. at 68:23-70:14.

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 1 In 2019, the City of Reno adopted the International Fire Code “making the same
2 applicable to the City.” RMC 16.01.012. The Staff Report Condition 25 provides that
3 “Amendment table 903.2.2 to International Fire Code (IFC) section 903.2 requires residential
4 sprinkler systems to be installed to any occupancy outside of six minutes response time from the
5 closest fire station. Response time calculations utilizing Station 19 to forgo sprinkler
6 requirements will only be allowed when the north emergency access road is constructed.” R7062.
7 At the hearing, Councilmember Reese and Mayor Schieve posed questions to Fire
8 Marshall Palmer about the requirement for sprinklers in the homes. Id. at 74:5-13; 77:9-78:11.
9 Mr. Palmer indicated that the homes on the Lucas Property would require sprinklers since they
10 were outside the six-minute response time from the closest fire station, which is Station 11 on the
11 corner of Sharlands and Mae Anne Avenue, which is fully staffed and eight minutes from the
12 southside of the development. Id. at 75:17-22. Mr. Palmer further stated that once the proposed
13 north emergency access road connection is made, Station 19 would be the closest and the
14 sprinkler mandate would end. Id. at 75:20-76:4. Mr. Palmer indicated that Station 19 is only a
15 two-man crew, but that when financial constraints are lifted, it would be a fully staffed four-
16 person crew again, but the timing was not guaranteed. 19 Id. at 78:22-5. He further stated that his
17 concerns with respect to opening the gate on the north emergency access road would be addressed
18 if the gate was equipped with a “clip to enter system” which would allow the fire engine to
19 remotely open the north access gate to reduce delays. Id. at 79:6-19. Mr. Palmer also stated that
20 Petitioners would have to follow state law for a wildlife urban interface area and develop a
21 vegetation management plan designed to address fires that start low and move up and out that the
22 homeowner’s association would have to comply with to address anticipated fire behavior given
23 the topography of the Lucas Property. Id. at 80:2-14.
24 Related to the availability and accessibility of fire protection for the Lucas Property,
25 Petitioners agreed to Conditions #23-25 in the Staff Report to include 1) sprinkler systems will be
26 installed in any residence outside of the six-minute response time from the closest fire station with
27
19
Mr. Palmer stated that the Reno Fire Department measures from the “closest fire station” and there is “nothing in
28 our adopted code that says it has to be fully staffed. It’s simply the closest fire station.” Id. at 75:9-12.

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 1 the understanding that response time calculations utilizing Station 19 to forgo sprinkler
2 requirements will only be allowed when the north emergency access road is constructed; 2) prior
3 to approval of the first final map, Petitioners shall provide documentation of a recorded access
4 easement through parcels 234-700-11 and 234-700-07, for the purpose of the north emergency
5 fire access road and a certificate of occupancy will not be issued until the road has been
6 constructed, to the approval of the Fire Department; 3) the north emergency access road will be
7 designed and installed per section 503 of the 2018 International Fire Code; the road shall be
8 maintained at all times by a homeowners association, including snow removal; and 4) if a security
9 gate is installed to limit public access, then a “Click 2 Enter” electric gate operator shall be
10 installed to allow quick emergency response from Station 19 (2015 Hawk Meadow Trail).
11 R7062.
12 Petitioners have also agreed to a 150-foot open space buffer between Lucas Property
13 homes and Somersett to protect existing development. Tr. at 95:15-17. Petitioners have agreed
14 that prior to the issuance of each building permit to construct a residential unit, a per unit
15 contribution for fire facilities in the amount of $1,600 will be required. Id. at 24:24-25:5. This
16 contribution will be set aside by the City to be applied toward improvements associated with fire
17 facilities to serve the project. Id. at 25:5-7. And Petitioners have agreed to submit to the Reno
18 Fire Department for review and approval the required vegetation management plan since the
19 project is in a High Hazard Wildland-Urban Interface Area. Id. at 80:7-13.
20 The evidence before the Council demonstrates that a reasonable mind could not find
21 nonconformance with Finding J given the contents of the Application and the comprehensive and
22 specific conditions agreed to by Petitioners related to the availability and accessibility of fire
23 protection for the Lucas Property. As to staffing and the eight-minute response time, Fire
24 Marshall Palmer was unequivocal that installation of sprinklers in each of the homes until such
25 time as the proposed emergency fire access connection is made on the north side of the
26 development, would be mandated. Further, he clearly indicated that the emergency fire access
27 road, installation of the “Click 2 Enter” electric gate operator, and submission of the mandated
28 vegetation management plan were essential to fire management for the Lucas Property, all of

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 1 which Petitioners have agreed to. At no point did Fire Marshall Palmer express concern that the
2 Application was not in compliance with the International Fire Code. Additionally, the record
3 does not support the finding that the Lucas Property is at an unprecedented elevation on Peavine
4 Mountain posing public safety risk that is beyond the City’s capacity to serve. It is undeniable
5 that growth in northwest Reno has been expanding to the hillsides. However, the record is clear
6 that homes exist in the adjacent Somersett development at elevations that exceed those planned
7 for the Lucas Property (the Cliffs). Id. at 135:11-19. Lastly, the City’s Fire Marshall did not
8 indicate an inability to serve the fire safety needs of the Lucas Property. Accordingly, the
9 availability and accessibility of fire protection was established and the finding of nonconformance
10 with Finding J was not supported by substantial evidence.
11 g. Special Use Permit Finding D – The proposal adequately mitigates
traffic impacts of the project and provides for a safe pedestrian
12 environment.
13 RMC 18.06.405(e)(1)(d) provides:
14 (e) Findings
15 1. Special Use permit applications shall require that all of the following
general findings be met, as applicable:
16
* * *
17 (d) The proposal mitigates the project’s traffic impacts and provides a
18 safe pedestrian environment.

19 The Decision Letter refers to RMC 18.06.405(e)(1)(d) as “Finding D.” The only
20 discussion that occurred at the hearing somewhat related to “a safe pedestrian environment” was
21 Councilmember Jardon’s condition that “pedestrian and bicycle trail access through open space
22 areas including the Cal Canyon Trail shall be identified with a recorded public easement and shall
23 be maintained by the HOA,” which Petitioners indicated they would comply with. Id. at 82:16-
24 21; 95:15-23. Therefore, this Court focuses on whether the Application sets forth adequate
25 mitigation of traffic impacts. RMC 18.08.406(i)(4) sets forth the specific MGOD requirements
26 related to traffic impacts and requires that traffic studies for individual projects must evaluate the
27 cumulative impacts of the development. RMC 18.08.406(i)(4)(c). Specific to Planning Area 1,
28 the MGOD requires an assessment of impacts to the on-ramp for the Highway 40/I-80

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 1 interchange. RMC 18.08.406(i)(4)(d). Petitioners submitted the required traffic study with the
2 Application which included an assessment of the impacts to the on-ramp for the Highway 40/I-80
3 interchange. R0032-R0033. Regarding the traffic mitigation plan, the Council asked Ms. Fuss
4 “what is that in this particular case?” Tr. at 66:1-5. Ms. Fuss explained the requirement to
5 provide the plan; that Petitioners had met the requirements of MGOD; and that Staff had added a
6 condition that with each final map the Petitioners submitted, they must include an updated traffic
7 study. Id. at 66:6-18.
8 The Council also inquired about the freeway access from the Lucas Property and Ms. Fuss
9 indicated that regarding the Highway 40 access, Petitioners had done the analysis and the project
10 does “not trigger any improvements to those intersections or onramps.” Id. at 67:7-16. Ms. Fuss
11 also indicated that there were two NDOT representatives present at the meeting available for
12 questions. Id. No questions were asked of the NDOT representatives. See generally Transcript.
13 The only analysis specific to Finding D came from Councilmember Brekhus. She
14 indicated that she could not make Finding D because the Applicant, in choosing to route all traffic
15 through the existing West Meadows neighborhood rather than an adjacent highway, was
16 “plac[ing] a disruptive condition upon the street network and possible conflicts with circulation in
17 the West Meadows development.” Id. at 147:14-18. This finding was not based on substantial
18 evidence as it did not consider the fact that the two access easements through the West Meadows
19 development were secured and recorded twenty years ago. Id. at 23:6-8. West Meadows was
20 developed with the access easements in place and the West Meadows CC&Rs notify future
21 homeowners of the connection to the Lucas Property and that the access roads have been
22 approved. Id. at 23:9-20. Ms. Fuss confirmed that “[i]t’s also associated when you buy your
23 house and you sign all the title paper work.” Id. Ms. Fuss explained:
24
When West Meadows came in, we knew that there was going to be a
25 future development because it had been planned as part of the MGOD and
had always been planned for 676 units. So we knew what the density
26 looked like. We knew specifically how many trips we could likely get out
27 of this development. Id. at 69:11-16.

28

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 1 Contrary to the contention that the access easements place “a disruptive condition upon
2 the street network and possible conflicts with circulation in the West Meadows development” the
3 record shows that for the last twenty years, the Lucas Property access was not only known by the
4 West Meadows developers, planners and Staff as to location, density, and trips, it was planned
5 for, as each impacted West Meadows homeowner is required to accept the Lucas Property access.
6 Otherwise, Petitioners’ traffic mitigation plan combined with Staff’s requirement for the
7 submission of a revised traffic plan with the submission of each final map went uncontested,
8 demonstrating that the mitigation of traffic impacts has been satisfied pursuant to Finding D and
9 that the finding of nonconformance not was not supported by substantial evidence.
10 h. Cut and Fill Finding B—The grading is necessary to provide safe and adequate
access to the development.
11
RMC 18.06.405(e)(3)(b) provides:
12
(e) Findings
13 3. Special Use permits for cut slopes greater in depth or fill slopes ten feet or
14 greater in height:
* * *
15 (b) The grading is necessary to provide safe and adequate access to the
development.
16
17 In the Decision Letter, compliance with RMC 18.06.405(e)(3)(b) is referred to as “Finding

18 B.” One reference was made to Finding B at the hearing by the Council which simply stated that

19 “cut and fill finding B related to grading necessary to provide access” could not be made. Id. at

20 147:9-12. No consideration was given to whether the project grading is necessary to provide safe

21 and adequate access to the development as required by the RMC. 20 No evidentiary support for

22 this finding was offered at the time it was made and no discussion occurred among the

23
24
25 20
In the Planning Commission Staff Report, which recommended approval of the Application, Staff noted “[t]he
proposed cuts and fills are necessary to meet the standard for street grades, while minimizing the impacts of grading
26 throughout the site… Over the course of the tentative map review process, staff worked with the applicant to lower
the grades adjacent to existing homes…” R0241-42. This Court acknowledges that the Planning Commission denied
27 the Application but notably, Staff’s finding that the proposed cuts and fills were necessary to meet the standard for
street grades, while minimizing the impacts of grading throughout the site directly addresses the requirement in RMC
28 18.06.405(e)(3)(b), which went uncontroverted at the March 10, 2021 hearing.

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 1 Councilmembers that supported nonconformance with this finding. Accordingly,
2 nonconformance with Finding B was not supported by substantial evidence.
3 This Court finds that the Council’s denial of the Application was without substantial
4 evidentiary support, and consequently an abuse of discretion. Nova Horizon, Inc v. City Council
5 of the City of Reno, 105 Nev. 92, 95-96, 769 P.2d 721, 723 (1989). The Application’s compliance
6 with the governing RMC was presented by the Council’s own technical Staff and was supported
7 with substantial evidence, which went unrebutted. This Court has previously considered the
8 actions of the Council related to the Application which led to the issuance of the Remand Order.
9 Accordingly, based on the analysis and findings set forth herein, as to the Application, this Court
10 directs Council to issue 1) a tentative map for a 632-lot single family residential subdivision; and
11 2) special use permits for: a) grading that results in cuts greater than 20 feet in depth and fills
12 greater than ten feet in height; b) hillside development; and c) disturbance of major drainageways.
13 Issuance of the tentative map and special use permits must include the following:
14 • Planning Commission Staff Report Conditions 1-22 (December 18, 2019)
(R0236-R0240);
15
• Staff Report Conditions 23-26 (March 10, 2021) (R7062-R7063) as set
16 forth in the Staff Report or as modified and agreed to at the March 10, 2021
17 hearing; and
• All other conditions proposed by Councilmember Jardon at the March 10,
18
2021 hearing agreed to by Petitioners as presented or agreed to by
19 Petitioners as modified.
20 Based upon the foregoing and good cause appearing,
21 IT IS HEREBY ORDERED that the Petitioners’ Supplemental Petition for Judicial
22 Review Pursuant to NRS 278.0233 and NRS 278.0237 is GRANTED consistent with this Order.
23 IT IS SO ORDERED.
24 DATED this 23rd day of December, 2021.
25
26
KATHLEEN M. DRAKULICH
27 DISTRICT JUDGE

28

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 1
CERTIFICATE OF SERVICE
2
CASE NO. CV20-00253
3
I certify that I am an employee of the SECOND JUDICIAL DISTRICT COURT of the
4
STATE OF NEVADA, COUNTY OF WASHOE; that on the 23rd day of December, 2021, I
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electronically filed the ORDER GRANTING SUPPLEMENTAL PETITION FOR
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JUDICIAL REVIEW with the Clerk of the Court by using the ECF system.
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I further certify that I transmitted a true and correct copy of the foregoing document by the
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method(s) noted below:
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Electronically filed with the Clerk of the Court by using the ECF system which will send a
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notice of electronic filing to the following:
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STEPHEN MOLLATH, ESQ. for D. FRED ALTMANN et al
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WILLIAM MCKEAN, ESQ. for CITY OF RENO, A POLITICAL
13 SUBDIVISION OF THE STATE OF NEVADA
14 Deposited to the Second Judicial District Court mailing system in a sealed envelope for
15 postage and mailing by Washoe County using the United States Postal Service in Reno,
16 Nevada: [NONE]
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20 Department 1 Court Clerk
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