Justices hear arguments on growth cap
November 9, 2005
CARSON CITY – Lawyers for and against a voter-approved cap on building permits in Northern Nevada’s scenic Carson Valley, known as this arid state’s “garden spot,” faced tough questions Wednesday during a state Supreme Court hearing on an appeal filed by cap proponents.
Justices Bob Rose and Michael Douglas and Senior Justice Miriam Shearing grilled foes of the cap approved by Douglas County voters in 2002 but blocked by a 2003 lower court ruling, with Rose asking why voters dismayed by development couldn’t force the issue by limiting growth.
If county commissioners keep calling for studies and putting off a firm decision on growth control, “Why can’t the people do that?” Rose asked Michael Berger, a developer’s attorney who also spoke for Douglas County in opposing the cap during an hourlong hearing.
Douglas said Berger seemed to suggest that voters aren’t fit to make such decisions, while Shearing asked why a step such as a building permit cap would be any worse than some other move that had the same goal of preserving the area’s rural character and quality of life.
Justice Ron Parraguirre took a different tack, asking pro-cap attorney Bill Shaw whether studies should have been done in advance of a permit allocation system, and whether the voter initiative required amendments.
Chief Justice Nancy Becker questioned whether a voter demand to enact growth controls within a specified period would have been a better approach than the initiative’s requirement for no more than 280 dwelling-unit permits per year.
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Becker also said a decision upholding the cap could force Douglas County to spend a lot of money buying up development rights.
Shaw, representing the Sustainable Growth Initiative Committee, urged justices to erase a February 2003 decision by Douglas County District Judge Mike Gibbons, who said the initiative conflicts with the area’s master plan.
Shaw said the cap conformed with the master plan, and Gibbons erred in accepting the arguments against the cap made by developers and by Douglas County District Attorney Scott Doyle. Besides claiming inconsistencies with the master plan, the growth cap foes argued the initiative that won solid voter approval was heavy-handed, inflexible and narrowly written.
Berger countered that the cap was a “meat-ax approach” to dealing with growth and wasn’t based on evidence of a need for such a step. He added justices can look at the record “upside down and backwards if you like” and won’t find such evidence.
Berger also said that there are many elements in the county’s much-amended master plan, first approved in 1996, and the permit cap dealt with only one of those elements.
A ruling by the Supreme Court will be issued at a later date.