137 Nev., Advance Opinion 249
IN THE SUPREME COURT OF THE STATE OF NEVADA
CITY OF HENDERSON, A POLITICAL No. 81474
SUBDIVISION OF THE STATE OF
NEVADA,
Petitioner,
vs. FILED
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
TIMOTHY C. WILLIAMS, DISTRICT
JUDGE,
Respondents,
and
SOLID STATE PROPERTIES, LLC, A
NEVADA LIMITED LIABILITY
COMPANY,
Real Party in Interest.
Original petition for a writ of mandamus challenging a district
court order denying a motion to strike a petition for judicial review filed
within an existing civil action.
Petition granted.
Nicholas G. Vaskov, City Attorney, and Wade B. Gochnour and Brandon P.
Kemble, Assistant City Attorneys, Henderson,
for Petitioner.
Erickson & Whitaker PC and Brian C. Whitaker and Ryan B. Davis,
Henderson,
for Real Party in Interest.
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BEFORE THE SUPREME COURT, PARRAGUIRRE, STIGLICH, and
SILVER, JJ.
OPINION
By the Court, STIGLICH, J.:
In this opinion, we consider whether a petition for judicial
review of an administrative zoning decision pursuant to NRS 278.3195(4)
may be filed within an existing civil suit. A petition for judicial review
requests district court review of an administrative decision, while a civil
action initiates litigation between two or more parties. Here, real party in
interest Solid State Properties, LLC, sued petitioner City of Henderson for
damages and other forms of civil relief related to the nonenforcement of a
zoning decision. Later, after subsequent developments to the zoning
decision, Solid State filed within that civil matter a document it titled
"Amended Petition for Judicial Review" to challenge the zoning decision.
The City moved to strike that document as improperly filed, which motion
the district court denied. But because civil actions and judicial review
proceedings are fundamentally different, such that they should not be filed
together within the same docket, we conclude that the district court erred
in denying the City's motion to strike the petition for judicial review.
Accordingly, we grant the City's petition for a writ of mandamus.
BACKGROUND
Solid State's property abuts land owned by Eastgate, LLC, in
Henderson. Eastgate obtained a conditional use permit (CUP) from the City
of Henderson in order to lease its commercially zoned property to a charter
school. Because the school creates significant traffic at the beginning and
end of the school day, the CUP contained several provisions regarding the
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queuing pattern on the road alongside both properties. But these provisions
were not enforced, and tensions arose between Solid State and Eastgate.
Solid State sued the City in district court, seeking damages,
injunctive relief, and attorney fees. The district court denied the injunction,
but Solid State's other claims remained pending.
The Henderson City Council thereafter held further
proceedings, reviewing and adopting the CUP with amendments. The
parties dispute whether this action was an adoption of new amendments to
the CUP or a finalization of the CUP for the first time. Regardless, Solid
State filed a document within the existing civil action entitled "Amended
Petition for Judicial Review" (the Amended Petition), in which it sought
"judicial review of [the CUP] . . . and relief from the conditions imposed by
the City through its grant of [the CUP]." Solid State grounded the petition
in NRS 278.3195(4), which permits parties that are aggrieved by the land
use decision of a governing body to file a petition for judicial review in the
district court, provided they have already appealed within the governing
body. Solid State had not previously petitioned for judicial review in any
court.
The City moved to strike the Amended Petition on the ground
that it was an improper attempt to file a new action within an existing
matter. The City argued that the existing action was a trial-level civil
action for damages and injunctive relief that could not properly be coupled
with a new action for judicial review of an administrative decision. The
'Further, the City argued that the Amended Petition did not comply
with several court procedural rules, that it was not properly served, that
Solid State did not pay a filing fee, and that petitions for judicial review
could not be heard in business court, where the existing action was filed.
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district court denied the City's motion and permitted the Amended Petition
to proceed as part of the existing civil action. The City then filed the instant
petition for a writ of mandamus, arguing that the district court improperly
denied its motion to strike the Amended Petition and that writ relief is
appropriate.
DISCUSSION
Writ relief is appropriate
This court has held that, generally, "judicial economy and sound
judicial administration militate against the utilization of mandamus
petitions to review orders denying motions to dismiss and motions for
surnmary judgment."2 State ex rel. Dep't of Transp. v. Thompson, 99 Nev.
358, 362, 662 P.2d 1338, 1340 (1983). However, "this court may exercise its
discretion to consider such writ petitions when the district court is obligated
to dismiss an action pursuant to clear authority under a statute or rule or
when an important issue of law needs clarification and this court's review
would serve considerations of public policy or sound judicial economy and
administration." Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 122
Nev. 132, 142, 127 P.3d 1088, 1096 (2006).
The issue of whether a party may file a petition for judicial
review within a pending civil action is an issue of first impression for this
court. As the law stands, Nevada litigants and judges lack guidance on this
point. Therefore, we find it appropriate to entertain this writ petition in
order to clarify Nevada law on this issue.
2Whi1e the district court's order was characterized as denying a
motion to strike a filing in the civil action, the effect of denying that motion
to strike was equivalent to denying a motion to dismiss the petition for
judicial review.
4
Standard of review
"In the context of writ petitions," this court "review [s] district
court orders for an arbitrary or capricious abuse of discretion." Helfstein v.
Eighth Judicial Dist. Court, 131 Nev. 909, 913, 362 P.3d 91, 94 (2015).
"However, we review questions of law.. . . de novo, even in the context of
writ petitions." Id. While the decision to deny the motion to strike was
addressed to the district court's discretion, the ultimate question presented
in this petition is one of law: whether a petition for judicial review may be
filed within a preexisting civil case. Therefore, we review the district court's
decision de novo.
A petition for judicial review cannot be filed within an ongoing civil action
NRS 278.3195(4) provides that a person who has
administratively challenged the land use decision of a governing body and
is aggrieved by the decision resolving that challenge may appeal in district
court through filing a petition for judicial review. A petition for judicial
review initiates a new action. See NRS 278.0235 (setting 25-day time limit
to "commence [ ]" an action or proceeding for judicial review); NRCP 3
advisory committee's note to 2019 amendment ("As used in these rules,
'complaint includes a petition or other document that initiates a civil
action.").
Under NRS 278.0235, a petition for judicial review must be filed
within 25 days after the date notice of the governing body's final action is
filed. The Eighth Judicial District Court has specific procedural rules
governing petitions for judicial review. Once the administrative record is
transmitted to the court, although the EDCR do not specify when or how
this happens, the petitioner has 21 days to file and serve a memorandum of
points and authorities. EDCR 2.15(a). Then, the respondent to the petition
serves and files a memorandum of points and authorities in opposition,
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followed by the petitioner's reply points and authorities. EDCR 2.15(b)-(c).
Only then may either party serve and file a notice for hearing. EDCR
2.15(d). These filings must conform to the guidelines for appellate briefs in
Nevada Rule of Appellate Procedure (NRAP) 28. EDCR 2.15(e). In
considering a petition for judicial review, the district court's task is to
"review[ ] the agency record to determine whether the [agency's] decision is
supported by substantial evidence." Kay v. Nunez, 122 Nev. 1100, 1105, 146
P.3d 801, 805 (2006).
Throughout the pendency of this matter, there has been
confusion and contrary arguments about how, in fact, to characterize the
filing by Solid State. It was labeled an "Amended Petition for Judicial
Review," but it obviously cannot have been an amended petition when no
previous petition had been filed. It appears that the document was either
an amended pleading meant to supplant the original complaint or a first
petition for judicial review of the city council's approval of the CUP and
amendments. Given this ambiguity in the filing's title, we look to its
content. Solid State cited to NRS 278.3195, which provides an aggrieved
party the ability to appeal the land use decision of a governing body to the
district court.3 The filing did not comply with some requirements of a
petition for judicial review,4 but moreover, it complied with none of the
3NRS 278.3195 is not operative on its own, though it requires
that "each governing body" adopt the provisions of the section. NRS
278.3195(1). Henderson has adopted such an ordinance. Henderson
Municipal Code § 19.6.9.E (2020), https://www.cityofhenderson.com/home/
showpublisheddocument/3987/637471869017200000.
4The
Amended Petition, for example, requested a hearing (violating
EDCR 2.15(d)) and was filed in business court (violating EDCR 1.61(b)(18)).
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requirements for an amended pleading laid out in EDCR 5.208 and NRCP
15.
We conclude that the "Amended Petition for Judicial Review"
was not an amended pleading that replaced the original civil complaint, but
rather a first petition for judicial review of the city council's approval of the
CUP with amendments. Accordingly, when the district court denied the
City's motion to strike the filing, it permitted two matters to proceed
together: a review of an administrative decision and a civil suit.
We have not yet addressed whether a judicial review action can
be coupled with a civil action. In Kay v. Nunez, this court held that a
petition for judicial review, not a petition for a writ of mandamus, is the
proper mechanism to seek review of a city's zoning decision. 122 Nev. at
1105-06, 146 P.3d at 805. A few years later, in City of Reno v. Citizens for
Cold Springs, 126 Nev. 263, 269-70, 236 P.3d 10, 14-15 (2010), we concluded
that, under Kay, issues regarding compliance with the law when amending
a master plan and adopting a rezoning ordinance were also properly
pursued by way of petition for judicial review. In neither case, however, did
we address whether a civil suit could proceed in the same docket with the
judicial review petitions.
Civil actions and judicial review actions are distinct types of
legal proceedings. As an initial matter, judicial review is statutorily
created, and "[c]ourts have no inherent appellate jurisdiction over official
acts of administrative agencies except where the legislature has made some
statutory provision for judicial review." Crane v. Cona Tel. Co. of Cal., 105
Nev. 399, 401, 775 P.2d 705, 706 (1989). Thus, the district court's role is
entirely different in hearing a petition for judicial review, where the district
court functions in a quasi-appellate role distinct from its usual role as a trial
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court. See NRS 278.3195(4) (providing that a party aggrieved by a
governing body's decision "may appeal that decision to the district
court . . . by filing a petition for judicial review"). Second, the district court,
when considering a petition for judicial review, is limited to a review of the
"agency record." Kay, 122 Nev. at 1105, 146 P.3d at 805. On judicial review,
the district court does not examine evidence produced in discovery or
through witnesses, as it does throughout the proceedings in a civil case; the
district court is expressly constrained to only consider the record of the
challenged administrative decision. Third, when each type of case is on
appeal before the appellate court, the standard of review differs for each.
For civil actions, we review questions of law de novo and the district court's
discretionary decisions for an abuse of discretion. When reviewing
dispositions of petitions for judicial review, "this coures function is the same
as the district court: to determine, based on the administrative record,
whether substantial evidence supports the administrative decision." Id.
(emphases added).
While we have not yet addressed whether these two kinds of
matters can be combined, caselaw from other jurisdictions provides
persuasive guidance. For example, the Idaho Supreme Court found that "a
petition for judicial review of a road-validation decision of a local governing
board is a distinct form of proceeding and cannot be brought as a pleading
or motion within an underlying civil lawsuit." Cobbley v. City of Challis,
139 P.3d 732, 735 (Idaho 2006). The proceedings must be kept separate,
and not "conglomerated," because "one proceeding is appellate in nature and
the other is an original action." Euclid Ave. Tr. v. City of Boise, 193 P.3d
853, 856 (Idaho 2008). The Arizona Supreme Court concluded that a private
cause of action cannot be joined with a request for judicial review as a
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cross-claim or counterclaim because judicial review is limited in scope
compared to a civil action, which does not have the same statutory
limitations. Madsen v. Fendler, 626 P.2d 1094, 1096-98 (Ariz. 1981); see
also Rail N Ranch Corp. v. Hassell, 868 P.2d 1070, 1075-76 (Ariz. Ct. App.
1994). And the Tennessee Court of Appeals has "heartily condemn[ed]" the
joinder of an appeal of a government action and an original action at a trial
court level. Goodwin v. Metro. Bd. of Health, 656 S.W.2d 383, 386 (Tenn.
Ct. App. 1983) ("The necessity of a separation of appellate review of a matter
and trial of another matter ought to be self evident. In the lower [c]ourt one
is reviewed under the appropriate Ca] ppellate rules and the other is tried
under trial rules. . . . Like water and oil, the two will not mix.").
Similarly, we now hold that petitions for judicial review of land
use decisions pursuant to NRS 278.3195 are distinct from civil actions, and
as such, they cannot be joined together. To conclude otherwise would allow
confusingly hybrid proceedings in the district courts, wherein the limited
appellate review of an administrative decision would be combined with
broad, original civil trial matters. Thus, Solid State could not initiate
judicial review proceedings within the existing civil action against the City,
and the district court erred in denying the City's motion to strike the
Amended Petition.
CONCLUSION
We clarify that it is improper to combine (whether from the
outset or through a later filing) a petition for judicial review with a related
civil action. These actions are too dissimilar for a court to be tasked with
balancing both trial and appellate functions in a way that does not lead each
to bleed into the other. Further, allowing both matters to proceed together
would create a convoluted appellate record for either decision. We therefore
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grant the City's petition and direct the clerk of this court to issue a writ of
mandamus instructing the district court to strike the Amended Petition
from this docket.5
J.
Stiglich
We concur:
-cLeam
Parraguirre
-g'ire--17 J.
J.
Silver
1n light of the previously unsettled law on this issue, nothing in this
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opinion prevents the court from also transferring the amended petition into
a new docket if deemed warranted.
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