IN THE SUPREME COURT OF THE STATE OF NEVADA
PETER GIBBONS, No. 80079
Appellant,
vs.
CARSON CITY, A POLITICAL
SUBDIVISION OF THE STATE OF FEB 2 2 2021
NEVADA,
EU:L-1V:
Res ondent. CLERK r.AL
EY
DEPL
ORDER OF AFFIRMANCE
This is a pro se appeal from a district court order dismissing a
complaint without leave to amend in a municipal code action. First Judicial
District Court, Carson City; James Todd Russell, Judge. Appellant raises
three main arguments on appeal.
Appellant first argues that the municipal code provision that
imposes height restrictions on fences does not apply to single-family
residential property. Interpreting the code provisions de novo, see City of
Reno v. Citizens for Cold Springs, 126 Nev. 263, 271-72,
236 P.3d 10, 16
(2010) (applying de novo review when interpreting municipal code
provisions), we disagree. The provision that limits fence height, CCMC tit.
18 app. § 1.13(5)(a) (2006), does not expressly exclude single-family
residential properties from its scope.1 Moreover, the municipal code
otherwise provides that development and design standards such as those in
1The provision states that "[n]o fences, walls or hedges exceeding 4
feet in height shall be permitted within a front yard setback or within 5 feet
of the property line on the street side."
&mew COLIRT
OF
NEVADA
(0) 1947A alISPID
7.,
t.tv
-444,
section 1.13 apply to all properties within Carson City.' See CCMC §
18.02.025 ("Title 18 ordinance requirements and corresponding
development standards ordinance requirements shall apply to all properties
within Carson City."); id. § 18.02.15(4) (providing that the design standards
serve as "parallel authority" to Title 18). We therefore agree with the
district court that respondent did not misapply the code provision in
determining that the height of the fence on appellant's property violated the
CCMC. See Desert Valley Water Co. v. State, 104 Nev. 718, 720,
766 P.2d
886, 887 (1988) (holding that, in analyzing the meaning of a statute, "Mlle
words of the statute should be construed in light of the policy and spirit of
the law, and the interpretation made should avoid absurd results"); see also
Mangarella v. State, 117 Nev. 130, 133,
17 P.3d 989, 991 (2001) (explaining
that a statute "must be construed as a whole and not be read in a way that
would render words or phrases superfluous or make a provision nugatory"
(internal quotation marks omitted)).
Appellant next contends that a government's desire to promote
aesthetics on single-family residential property is not a legitimate
government interest under NRS 278.020 and therefore the code provision
at issue is unconstitutional. We review de novo, Busefink v. State, 128 Nev.
'For this reason, we are not persuaded by appellant's argument that
section 1.13 does not apply to single-family residences because another
provision in the same title says the "design standards have been prepared
to foster quality design" of various types of projects without mentioning
single-family residences, CCMC tit. 18 app. § 1.0 (noting that "[t]hese
design standards have been prepared to foster quality design of office,
commercial, multi-family, public, industrial and institutional projects
within Carson City"). See State v. Koontz, 84 Nev. 130, 139,
437 P.2d 72, 77
(1968) (explaining that the doctrine of expressio unius est exclusio alterius
at best "is a mere aid to interpretation" and that "Merhaps more accurately,
it usually serves to describe a result rather than to assist in reaching it").
SUPREME COURT
Of
NEVADA
2
(0) 1947A me*,
525, 528, 286 P.3d 599, 602 (2012) ("We review a constitutional challenge to
a statute de novo."), and disagree. Although appellant argues that his
constitutional challenge is subject to strict scrutiny, this court has held that
rational basis review applies to constitutional challenges to zoning
ordinances. See, e.g., Talk of the Town Bookstore v. City of Las Vegas, 92
Nev. 466, 471-72,
553 P.2d 959, 962 (1976) (applying rational basis analysis
to a zoning ordinance distinguishing between certain types of bookstores).
The municipal code provision at issue survives rational basis review.
"It is well settled that the state may legitimately exercise its
police powers to advance esthetic values." Members of City Council of City
of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984) (holding that "Mlle
concept of the public welfare is broad and inclusive," and "[t]he values it
represents are spiritual as well as physical, aesthetic as well as monetary");
see also Gypsum Res., LLC v. Masto, 672 F. Supp. 2d 1127, 1142 (D. Nev.
2009) (The preservation of scenic and recreational areas is a legitimate
state purpose providing a rational basis for zoning restrictions."). NRS
278.020(1) authorizes and empowers governing bodies of cities and counties
"to regulate and restrict the improvement of land and to control the location
and soundness of structures," "fflor the purpose of promoting health, safety,
morals, or the general welfare of the community." In line with this
authority, section 1.0 similarly provides that the standards it sets forth are
"aimed at improving the community image," to enhance "the economic wellbeing of the city, especially the tourism econoniy." Section 1.0 further states
that the "standards are intended to inspire development of lasting quality
and designs that enhance the overall community." Consistent with this
purpose, section 1.13 sets forth a height requirement that applies to all
properties in Carson City. Thus, on its face, section 1.13 is related to a
SUPREME COURT
OF
NEVAOA
3
Rh 1947A 44/1Dca
legitimate government interest and is not arbitrary or unreasonable. See
Sustainable Growth Initiative Comm. v. Jurnpers, LLC, 122 Nev. 53, 71-72,
128 P.3d 452, 465 (2006) (holding that "a zoning ordinance is
unconstitutional only if its provisions are clearly arbitrary and
unreasonable, having no substantial relation to the public health, safety,
morals, or general welfare" (internal quotation marks omitted)).
To the extent that the Nevada Constitution protects a person's
property rights above and beyond that provided by the United States
Constitution, the municipal code provision at issue does not, on its face,
infringe upon those rights. In particular, section 1.13 does not prevent
persons from acquiring, possessing, or protecting their property. See Nev.
Const. art. 1, § 1 ("All [persons] are by Nature free and equal and have
certain inalienable rights among which are those of enjoying and defending
life and liberty; Acquiring, Possessing and Protecting property and
pursuing and obtaining safety and happiness . . . ."); cf. Mangarella, 117
Nev. at 134-35,
17 P.3d at 992 ("Whenever possible, we must interpret
statutes so as to avoid conflicts with the federal or state constitutions.").
Rather, section 1.13 merely prescribes certain esthetic requirements.
Appellant therefore has not rnet his burden of proving the provision is
unconstitutional. See Sustainable Growth Initiative, 122 Nev. at 71,
128
P.3d at 465 (holding that the party challenging the zoning ordinance bears
the burden of demonstrating that the ordinance at issue is constitutionally
unsound).
Appellant finally argues that section 1.13 is unconstitutional as
applied to him because it infringes on his inalienable right under the
Nevada Constitution to protect his property from predators and other
wildlife. Because appellant has not filed for a special use permit for higher
SuPRemE COURT
OF
NEVADA
4
(0) 1947A steln,
fencing, he has yet to exhaust his administrative remedies, a requirement
for as-applied constitutional challenges. See, e.g., City of Suwanee v. Settles
Bridge Farrn, LLC, 738 S.E.2d 597, 600 (Ga. 2013) (holding that a party
failed to exhaust its administrative remedies where it did not submit "a
special use permit application to the City Planning Commission for its
review, to be followed by City Council review"); see McCarran Int? Airport
v. Sisolak, 122 Nev. 645, 664,
137 P.3d 1110, 1123 (2006) (noting that "[t]he
Supreme Court has required exhaustion of administrative remedies in cases
where a regulation is alleged to have gone too far in burdening private
property"); cf. Malecon Tobacco, LLC v. State, 118 Nev. 837, 839,
59 P.3d
474, 475-76 (2002) (holding that a party must exhaust administrative
remedies where the issue relates to an as-applied challenge to the
constitutionality of a statute). Although exhaustion of administrative
remedies is not required if doing so would be futile, Malecon Tobacco, LLC,
118 Nev. at 839,
59 P.3d at 476, appellant has not demonstrated that
applying for a special use permit would be futile, even treating "all factual
allegations in [his] complaint as true, [and] drawing all inferences in [his]
favor," Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 228,
181 P.3d
670, 672 (2008) (providing the standard for reviewing motions to dismiss).
Specifically, while appellant's complaint alleges that the Carson City
Planning Division staff indicated that it would not support his special use
permit application, he concedes that, at one time, staff indicated it would
support the application for a special use permit, and that the Planning
Commission, not staff, ultimately determines whether to approve such
applications. And any contention that the Planning Commission will deny
his special use permit application is speculative. See Doe v. Bryan, 102 Nev.
523, 525,
728 P.2d 443, 444 (1986) (concluding that an alleged harm that is
SUPREME COURT
OF
NEVADA
5
(0) i947A 411102D
speculative is insufficient for a justiciable controversy—an existing
controversy must be present). Thus, we need not address appellant's as-applied challenge at this time.3 See Allstate Ins. Co. v. Thorpe, 123 Nev.
565, 571,
170 P.3d 989, 993 (2007) (holding that "[w]hether couched in terms
of subject-matter jurisdiction or ripeness, a person generally must exhaust
all available administrative remedies before initiating a lawsuit, and failure
to do so renders the controversy nonjusticiable").
Based on the foregoing, we
ORDER the judgment of the district court AFFIRMED.
-16,t , C.J.
Hardesty
J.
Parraguirr
J.
Cadish
cc: Hon. James Todd Russell, District Judge
Peter Gibbons
Carson City District Attorney
Carson City Clerk
3While the district court did not dismiss appellant's case on this
ground, it nevertheless reached the correct result. See Saavedra-Sandoval
v. Wal-Mart Stores, Inc., 126 Nev. 592, 599,
245 P.3d 1198, 1202 (2010)
("This court will affirm a district court's order if the district court reached
the correct result, even if for the wrong reason.").
SUPREME COURT
OF
NEVADA
6
(0) 1947A (ODD
• ..1•,••• )
,..4...f%)•;:':•• • )• fr4 ',•fr
