Agenda - Planning Commission - 06/07/2007

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Zoning Bulletin impermissible considerations, such as ... a malicious or bad faith intent to injure th.e [landowner]." Indelcato could not demonstrate that the board acted in the prescribed manner necessary to prove his claim of selective enforcement; even if he could, the court could not force the board to act illegally as a remedy. The court reversed the decision of the lower court and dismissed the case. See also: Wiederspiel v. Leifeld, 197 A.D.2d 781 (31'd Dept. 1993). See also N011:hway 11 Communities v. Town Bd. of Town of Malta, 300 A.D.2d 786 (3rd Dept. 2002). Appeal-Neighbor appeals board decision to waive standards for mixed-use building Building approved despite failure to meet several development requirements Citation: Kay v. Nunez, - P.3d -,2006 WL 3378456 (Nev. 2006) NEVADA (11/22/06)-Nunez owned property outside of Las Vegas in Clark County. He wanted to build a single, mixed-use 16-story building to replace three existing residential buildings on the property. The property, however, was zoned a limited resort and apartment use area, which allowed a maximum of 50 dwelling units per acre. Nunez's proposed building would exceed that restriction. Nunez applied to have the property rezoned to urban village/mixed use. This classification would allow residential, commercial, recreational, and open space components in a single urban center and had no unit density restrictions. Nunez's proposed building, however, still did not meet certain mixed-use requirements, in- cluding open space, parking, height, and setback requirements. Nunez asked for waivers to these standards. illtimately, the county pl2.1-ming commission approved the application. Kay, a resident of a nearby apartment complex, appealed the commission's decision to the tOwll board, objecting to the waiver of the development standards. Nonethe- less, the board approved the waivers that Nunez had requested. Kay asked the court to review the board's decision. The lower COlli"L denied his request, and Kay appealed. On appeal, the board admitted that Kay had standing , to bring his appeal as an aggrieved party but argued that it had not abused its au- thority by waiving the development standards. Decision: Affirmed. After establishing that Kay had standing to bring his request as an aggrieved party, the court focused on two parts of his claim. Kay argued that, under state law: 1) there were very limited circumstances under which the board could prop- erly grant variances, and 2) the board did not have the authority to waive de- velopment standards. Because he presented questions that were purely legal-in other words, because he was asking for judicial review based on the law, not the evidence presented in the administrative hearings-the court looked to the law in question to decide whether to grant review. Here, the law stated that "variances [could] be granted by a county board of adjustment when a parcel's shape or topographic conditions would result in ex- ceptional practical difficulties to or hardships upon the landowner." However, counties had the discretion not to create a board of adjustment; using plain lan- guage, this narrow criterion only applied to boards of adjustment. 4 148