The Nevada Supreme Court on Friday threw out Douglas County's "super majority" requirement for master plan changes, saying it violates state law.
The issue was raised by Roger Falcke and Herbig Properties, winners by a 3-2 vote by the county commission to change the master plan and allow their project but were denied a permit because the county ordinance requires a "super majority" of at least 4-1 on the county commission.
The Supreme Court order directs Douglas County to grant the master plan change and allow commercial development on 7.5 acres of wetland near Lampe Park.
Falcke's attorney Todd Russell argued the Legislature set a two-thirds vote requirement for planning commissions around the state but that state law requires only a majority vote by the county commission. He said lawmakers consciously decided on a majority vote, not two-thirds for master plan decisions.
Douglas County Deputy District Attorney Thomas Perkins said there's nothing illegal about a county going for a higher or tougher standard than the state and that the state has traditionally allowed counties and cities to do so.
The Supreme Court panel of Cliff Young, Deborah Agosti and Myron Leavitt agreed with Russell.
"If the Legislature intended to require a super-majority vote of the board to amend the master plan, it would have expressed this intent just as it had done in NRS278.210 by requiring a two-thirds vote of the planning commission," says the opinion.
It points out that lawmakers specifically spelled out requirements for a two-thirds vote in a number of other places in Nevada law.
"Certainly, the desire of the board to curtail development and strictly control land use is understandable," says the opinion. "However, given the Legislature's decision to not impose a heightened voting standard under NRS278.220, we conclude that the board cannot independently impose this requirement."
The court issued a writ of mandamus directing the Douglas County Commission to approve the Falcke application for a master plan amendment.
