Clark County Board of Commissioners v. Taggart Construction Co.

Torvinen, D. J.,1

dissenting in part:

I respectfully dissent as to a part of the majority opinion. *737Respondent W.M.K. Transit Mix obtained a permanent variance from the Board of County Commissioners of Clark County, “for the mining and crushing of gravel, and to construct and maintain rock crusher and ready-mix concrete plant, . . . .” W.M.K. made an application for a building permit to construct a mixing plant for paving material. The application was referred to the Planning Department of Clark County which rejected the permit application. Thereafter W.M.K. applied for a building permit to construct a shop building on the premises to be used for maintenance and repair operations on the mechanical equipment and machinery located on the premises. The building permit for the shop building was also denied. Respondents brought an action in the district court for declaratory judgment. They claim they are entitled to building permits because the variance authorized those uses.

The trial court, in its findings of fact, stated:

That the variance was permanent and included permissible and reasonable and necessary additions or enlargements to the original use that the property was put to under the variance and the court specifically declares that the use of the property is limited to central mixing plant for cement, mortar, plaster, and paving material ready-mix plant. This includes an asphalt paving material plant.

The trial court also stated in the findings of fact:

That the building for the maintenance, repair, and housing and storage of equipment is a logical extension of the use which would include buildings as are reasonably necessary and incident to the operation of the use to which the property is put. The plaintiffs are entitled to a building permit for the shop building.

The majority opinion states that the district court conducted the equivalent of a trial de novo and made its own independent determination of the breadth of the variance. I take that to mean that, in effect, the trial court reheard the variance application and ordered a change in the terms of the variance.

As to the mixing plant, I respectfully disagree with that conclusion. The trial court was asked to interpret the meaning of the language of the 1965 variance and determine whether or not within that language the respondent was entitled to a building permit. To interpret the meaning of the wording of a variance is a proper use of the declaratory judgment action.

Although there are other extraneous words in the findings of fact by the trial court, in effect the trial court found that the *738words “ready-mix concrete plant” included an asphalt mixing plant. Concrete may not necessarily mean a paving mixture made with Portland cement but may also include asphalt or bituminous concrete. Appeal of H. R. Miller Co., 281 A.2d 364 (Pa. 1971).

Findings of fact of the trial court should not be set aside unless clearly erroneous. NRCP 52(a); McMillan v. Torre, 84 Nev. 556, 445 P.2d 160 (1968). A trial court’s construction of an agreement supported by substantial evidence will not be disturbed on appeal. Fox v. First Western Savings, 86 Nev. 469, 470 P.2d 424 (1970). Here the trial court, after hearing the evidence, interpreted the variance language “ready-mix concrete plant” as including an asphalt mixing plant. If there is some evidence in the record to support it, such a finding is not clearly erroneous as a matter of law and the trial court should be upheld.

The shop maintenance building is another matter however. I agree with the majority opinion holding that variances granted from zoning ordinances are to be strictly construed. The variance makes no mention of any shop or maintenance building and if the variance is to be strictly construed, adding the shop and maintenance building goes beyond the specifics of the variance by adding an additional use. Such a finding goes beyond the authority of the court to interpret the words of the variance. Therefore, I join with the majority in reversing the judgment of the lower court in that respect.

The Governor designated the Honorable Roy Torvinen, Judge of the Second Judicial District Court, to sit in the place of The Honorable John Mow-bray, Chief Justice, who was disqualified. Nev. Const, art. 6, § 4.