City of Las Vegas Downtown Redevelopment Agency v. Pappas

Maupin, L,

dissenting:

I would affirm the result reached by the district court based upon my dissent in Las Vegas Downtown Redevelopment v. Crockett.1

*455 Amendment of the Plan

The Fremont Street Experience, the redevelopment project in this matter, is subject to the same redevelopment plan and is within the same redevelopment area with which we were concerned in Crockett. Because I conclude that the signal feature of the project, the vacation of the oldest and one of the most traveled public boulevards in the city, effected a material change to or deviation from the governing redevelopment plan, I also conclude that the Agency improperly failed to se;ek formal amendment of the Plan before taking properties via eminent domain.

The Crockett majority held that the vacation of four streets and the relocation of a public park did not constitute a material deviation from or change to the redevelopment plan involved in this case. A fair reading of the majority opinion in Crockett supports the implied ruling by the majority in this case that resort to the formal amendment process provided for under NRS 279.608 was legally unnecessary. This notwithstanding, I remain of the view that Crockett was wrongly decided on its facts and should be revisited.

The redevelopment area in this case encompasses virtually the entirety of old downtown Las Vegas, bounded on the west by Martin Luther King Boulevard, on the east by Bruce Avenue, on the north by Washington Avenue, and on the south by Sahara Avenue. As noted by the majority in Crockett, the plan was approved to “eliminate and prevent the spread of blight and deterioration,” contemplating acquisition of real property by purchase and by eminent domain, ‘ ‘transfer of acquired real property to public or private entities,” and the “demolition of buildings . . . construction of parks, development and construction of hotel and ‘tourism/recreationaT facilities, and the widening, closure and vacation of streets and alleys.” in the redevelopment area.2 Although I agreed with the Crockett majority that redevelopment plan amendments are only necessitated when a proposed project entails a material deviation from the redevelopment plan, and although I agreed that formal amendment of a plan is hot per se necessary to commence any project, I concluded that the vacation of parks and streets without formal plan amendment ran afoul of NRS 279.572 and NRS 279.608:

The ability to amend under NRS 279.608 is quite specific in terms of the procedure to be followed. However, there are no stated criteria in this statute governing when the amendment process is required, other than the statement in subsection (3) that “substantial” changes must be submitted in a written recommendation for consideration by a city or county *456government to amend the plan. Thus, I believe NRS 279.608 and NRS 279.572 must be read together to determine legislative intent. As noted, NRS 279.572 requires that redevelopment plans show open spaces, layout of streets, size, height, number and proposed use of buildings, number of dwelling units, property to be devoted to public purposes, other covenants, conditions, and restrictions, etc. While changes in the use of individual dwelling units and building sizes may involve mere details not requiring resort to the formal amendment process, vacation of streets and relocations of public parks depicted on the approved map are entirely different matters. Certainly, vacation of streets and relocation of parks are not “details”. . . .3

Thus, while the plan in Crockett and in this case empowers the Agency to vacate public streets, as well as take other actions without resort to formal amendment of the plan, I am of the view that such powers are beyond those sanctioned in the statutory framework governing redevelopment unless the plan itself has been approved with the material changes sought. In Crockett, I also commented upon the Agency’s need to promote flexibility and quick response to changing conditions. In doing so, I noted that the vacation of streets was not a measure that interfered with the need for expeditious action in response to changing economic conditions. I would also note that the assemblage of multiple parcels, as was done in this case to build the garage that now occupies the properties owned by the Pappas family, was likewise not done as a quick response to changing conditions. No one in this controversy has seriously suggested that the economic blight the City and the Agency sought to alleviate was anything other than a long-term developmental problem.

My vote to affirm is not based upon agreement with the district court’s myriad justifications for dismissing the eminent domain action below, including its ruling that all redevelopment projects implicate the formal amendment process under NRS 279.608. Rather, it is based upon my view that, while there is no absolute requirement that redevelopment plans be formally amended to accommodate any redevelopment project, the nature of the project in question here mandated that the Agency submit to an amendment process prior to utilizing the power of condemnation to consolidate and assemble the affected parcels. In this, I note that the district court did not have the benefit of the Crockett decision when it determined that formal amendment of the Plan was a condition precedent to the exercise of eminent domain in this instance. However, as discussed below, because plans such as the 1986 Plan at issue *457here must of necessity be drafted in general terms, the requirement to amend should be fairly broad.4

Blight issues and the amendment process

Appellants claim that any issue of blight was conclusively resolved at the termination of the ninety-day protest period under NRS 279.609 following the adoption of the Plan in 1986, during which respondents took no action concerning the findings of blight within the redevelopment area. Respondents claim that evidence in support of the original determination of blight in the redevelopment area was flawed and insufficient. This, in fact, was one of the primary underpinnings of the district court’s decision. To me, neither side has completely analyzed the procedural framework within which blight issues may be raised.

Appellants correctly argue that any questions regarding the problem of potential or existing generalized blight in the redevelopment area was conclusively established after expiration of the protest period following adoption of the original Plan. In my view, the district court relied too heavily upon the documentation it ordered produced concerning blight studies prior to the adoption of the Plan and the delineation of the redevelopment area in 1986. As noted by the Agency, the development of elaborate or comprehensive written documentation of blight was even unnecessary to a valid determination by the City that the redevelopment area as a whole contained widespread physical, social and economic blight. This was a decision that could be properly drawn from individualized knowledge of members of the Council who were in a position to judge the merits of the blight issue. Because no one lodged objection to the blight findings within the ninety-day period, any judicial tribunal must give deference to those findings. This deference, however, does not end the matter. Here, respondents could have reasonably concluded at the time that such a protest was unnecessary because the Plan did not establish that the Plan area suffered from blight in its entirety and that they could protest at a later time whether a particular project would meet the objectives of the Plan, i.e., the alleviation of blight in their particular neighborhood and its environs. Going further, it is quite understandable that no individual landowner lodged formal objections either administratively or within the judicial system because of the daunting and probably prohibitively expensive task of challenging the validity of the entire Plan. Also, because ample justification existed to support the establishment of the downtown redevelopment area, *458and because the mayor, city manager, members of the Council and at least one attorney representing the City made public assurances that the utilization of eminent domain to effect redevelopment projects would only come as a last resort, landowners in the area cannot be criticized or deprived of more discrete protest rights for not taking action against the Plan during the initial ninety-day period. Accordingly, while the respondents in this case have given up the right to contest the general resolution adopting the Plan and the blight findings inherent in it, they should still have been able to lodge objections in the context of a formal plan amendment concerning the Fremont Street Experience project on the grounds that takings pursuant to the amendment would not serve to alleviate blight in the neighborhood, i.e., were inconsistent with the goals of the original Plan, or were not effected for public use. Whether they would have been successful may be doubtful, but they were still entitled to that forum. From there, these landowners could have sought administrative review in district court and litigated the issues they are trying to litigate now, long after the demolition of their property and the construction of the parking garage.5 For these reasons, I feel Crockett too narrowly defines a redevelopment agency’s duty to seek plan amendments to accommodate specific projects.

General issues concerning redevelopment

The majority correctly concludes that a redevelopment plan or project serves a public purpose when the plan or project bears a rational relationship to the eradication of physical, social or economic blight, and that ultimate ownership of taken properties may be eventually assumed by other private interests if in aid of the public use. The majority also correctly concludes that non-blighted properties may be taken in support of an integrated plan of redevelopment to alleviate blight in a particular neighborhood or area.6 The respondents agree with these propositions7 but cling to the ar*459guments that there was insufficient showing of blight in the first instance, that the Fremont Street Experience was not “redevelopment,” and that the transfer of the taken properties to the private entity here was a private benefit, not a public use.

In light of the above, I agree with the proposition that generalized blight issues and concerns in connection with the redevelopment area were conclusively established in 1986, that economic blight may be the subject of redevelopment effected via the use of eminent domain, and that, in Nevada, private entities comprised of hotel/casino properties may participate in a redevelopment project and therefore take title to redevelopment property acquired through the use of eminent domain. Thus, I disagree with the district court’s findings below that this type of redevelopment cannot embody a public use or constitute redevelopment as a matter of law.

CONCLUSION

While the district court erred in its conclusion of law that formal amendment is a condition precedent for any plan of redevelopment, the profound nature of this Plan required that this particular project go through the scrutiny of a formal amendment process. In this way, the affected landowners would have had. a full opportunity to administratively air their views and have those views considered by the Agency prior to undertaking the project — views including whether the project was consistent with the elimination of physical and economic blight within the immediately affected area.

I would therefore affirm the result reached below.8

117 Nev. 816, 34 P.3d 553 (2001).

Id. at 819, 34 P.3d at 555.

Id. at 834, 34 P.3d at 565 (Maupin, C. J., dissenting).

Projects such as the Fremont Street Experience are extensive enough to require material changes to a redevelopment plan beyond simple vacation of streets, thus implicating the formal amendment process.

See Redevelopment Agency, Etc. v. Herrold, 150 Cal. Rptr. 621, 625 (Ct. App. 1978).

See Berman v. Parker, 348 U.S. 26, 32 (1954).

The majority apparently misconstrues respondents’ arguments in its recitation that respondents claim that the takings were illegal because their individual properties were not blighted and that eminent domain can never be used where the taking involves transfer of land from one private owner to another. My reading of respondents’ arguments is that the project area, including their properties, was not blighted and that the taking here was not an integrated plan to alleviate blight in the area directly affected by the project; and that the transfers of property taken via eminent domain in this case were not consistent with the furtherance of a public use through redevelopment. Counsel for the respondents concedes that the utilization of eminent domain to effect redevelopment where taken properties are ultimately transferred to private entities is not per se violative of the Fifth Amendment to the Federal Constitution.

I note that the traditional measure of damages prohibits the landowner from receiving damages based upon a post-taking evaluation or appraisal. Although we have never reached this issue, because this unique type of condemnation proceeding involves redevelopment and the transfer of private property to another private enterprise entity, it would be reasonable that the respondents be awarded damages based upon the upgraded value of the property caused by the redevelopment. To that degree, they would be receiving a fair benefit for their contribution to the redevelopment area. I urge the parties to explore this possibility on remand.