MINUTES OF THE meeting
of the
ASSEMBLY SubCommittee on Government Affairs
Seventy-First Session
February 20, 2001
The Subcommittee on Government Affairswas called to order at 3:45 p.m., on Tuesday, February 20, 2001. Chairman Bonnie Parnell presided in Room 3143 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Ms. Bonnie Parnell, Chairman
Mr. David Brown
Ms. Debbie Smith
STAFF MEMBERS PRESENT:
Eileen O’Grady, Committee Counsel
Dave Ziegler, Committee Policy Analyst
Glenda Jacques, Committee Secretary
OTHERS PRESENT:
Irene Porter, Home Builders Association of Southern Nevada
James A. Bell, Public Works Director, City of North Las Vegas
Kimberly J. McDonald, Management Analyst, City of North Las Vegas
Stephanie Garcia, Legislative Advocate, City of Henderson
Robert A. Murnane, Acting Director, Public Works, City of Henderson
Dirk Richwine, Assistant Director of Parks and Recreation, City of Henderson
Madelyn Shipman, Assistant District Attorney, Washoe County
Tracy L. Chase, Deputy City Attorney, City of Reno
Jeff Mann, Parks Manager, City of Reno
Viola R. Goodwin, Planning Supervisor, City of Las Vegas
Dan Musgrove, Legislative Advocate, City of Las Vegas
K. Neena Laxalt, Government Relations Consultant
Chairman Parnell called the subcommittee to order and invited those who wished to speak to come forward.
Assembly Bill No. 63: Revises provisions governing maintenance of landscaping, public lighting and security walls in subdivisions and planned unit developments. (BDR 22-994)
Irene Porter, Home Builders Association of Southern Nevada, represented Assembly Speaker Perkins, the author of A.B. 63. She referred to A.B. 570 of the Sixty-Ninth Session, which allowed the creation of landscape maintenance districts. The districts were implemented by local governments as an alternative to homeowner’s associations. Peripheral landscape areas were required as part of a subdivision for attractiveness and beautification of the city. Landscape areas were shared by the subdivision residents, as well as the city. Washoe County and the city of Reno have successfully used the landscape maintenance district law. The Home Builders Association had met with resistance to landscape districts in southern Nevada. The general public did not want the restrictive rules of a homeowner’s association. Requests have been received addressing what landscape and other amenities were required by subdivisions, without having to form a homeowner’s association. Local builders had requested a mandatory landscape district law so applications filed in accordance with the law could not be denied.
Since the bill had been initiated, questions had arisen concerning trails, bike paths, and other amenities on the outside or back of subdivisions. Las Vegas had been working to modifying Title 18 ordinances that addressed the landscape district concept. The city wanted those types of areas dedicated and maintained by the homeowner’s associations. The building community would like to include trails, bike paths, landscaping, lighting, and security walls as part of the landscape maintenance district. They believed publicly used areas should not be the long-term liability of homeowner’s associations. Donated land for trails would become the liability of local governments. Those areas would be maintained through the landscape maintenance district vehicle and fees would be assessed by those who used the area.
Assemblyman Brown wanted to know what Title 18 referred to. Mrs. Porter replied it related to planning, zoning, subdivision and development codes in Las Vegas. Subdivision perimeter landscaping fell under Title 18 codes.
Mr. Brown inquired whether trails and bike paths were typically under private ownership. Mrs. Porter answered trails were usually left in private ownership. There were issues concerning the long-term liability for those homeowners who had private land in public use.
Mr. Brown questioned whether there had been any liability cases against individual homeowners or homeowner’s associations. Mrs. Porter stated the most famous case on the issue of trails was Dolan vs. Tigard in Oregon. The local government had required a public easement across the Dolan’s private property as a condition to build. After seven or eight years in court, including the United States Supreme Court, the city had to pay the Dolans $1.5 million in settlement costs. In the city of Summerlin, an accident occurred on a median landscape island and the homeowner’s association had been sued.
Mr. Brown wondered if there were other liability cases. Mrs. Porter said she only knew of the one case, but she would research the issue further.
James A. Bell, Director of Public Works for the City of North Las Vegas, supported the bill except for the area in Section 1, Paragraph 3, where governmental discretion was removed. Local governments should not be required to take over a homeowner’s association (HOA) in default without the ability to determine if there was a public benefit. Government duties required responsibility and discretion when determining public benefit.
Mr. Bell stated he was a director of an HOA and believed strong associations benefited government and private citizens. He suggested additional language be inserted in Section 2, strengthening the financial solvency of homeowner’s associations.
Chairman Parnell asked if Mr. Bell was referring to Section 2 on page two. Mr. Bell clarified he was specifically referring to Paragraph b on page two.
Chairman Parnell stated that Section 2, Paragraph b, was already in law. The subcommittee meeting today was only reviewing the proposed language within A.B. 63 and did Mr. Bell have problems with the new language.
Mr. Bell supported the changes in A.B. 63 except for Section 1, Paragraph 3, where mandate was given to local governments. He was opposed to deletion of language allowing governments discretion.
Mr. Brown stated he felt the general public did not want strong HOAs, and questioned what Mr. Bell based his statement of strong HOAs on.
Mr. Bell answered some HOAs were controversial when enacting some of their rules. His statement regarding strong homeowner’s associations had to do with budgeting matters. A strong financial structure was necessary when an HOA was created.
Mr. Brown inquired whether the attractiveness of the community, the exterior lighting, walls and landscaping could be deemed the public benefit requirement for assuming that responsibility.
Mr. Bell replied it could be a benefit, but would it be a proper use of tax dollars to automatically, without discretion, assume those maintenance responsibilities. The operation of an HOA mainly consisted of administrative functions and rule enforcement. Local governments are not HOAs and should not take on those responsibilities without determining the public benefit. Exception would be health and safety issues to the community.
Mr. Brown stated the bill does provide for specific assessment that would not involve tax dollars. Mr. Bell replied if government took over the job of managing an HOA costs could increase significantly.
Mr. Brown noted the discussion had focused on failing homeowner’s associations and their costs to local government. Nothing had been mentioned regarding the provision in the bill for associations to enter into binding agreements with governing bodies at the time of inception.
Mr. Bell stated landscaping could deteriorate over many years before problems would be noted. An improperly funded HOA could place financial burdens on local governments. If a failing HOA had to have an increase of $200 to $300 per month to survive, it would become a political issue. Government would have difficulty in passing those direct costs to homeowners. Local governments could be burdened unreasonably if A.B. 63 mandated them to take on those responsibilities without discretion to determine public benefit.
Mr. Brown questioned if Mr. Bell wanted to include new homeowner’s associations as well. Mr. Bell agreed and said the change would benefit homeowners. A well-maintained homeowner’s association would increase property values.
Mr. Brown wanted to know if the bill should focus on landscaping, public lighting and security walls. Mr. Bell replied it could encompass other things.
Chairman Parnell stated Section 1, Paragraph 1, specifically outlined “...landscaping, public lighting, and security walls.”
Kimberly McDonald, City of North Las Vegas, indicated their interest in working to make A.B. 63 a viable bill.
Stephanie Garcia, City of Henderson, supported the bill but had concerns with some of the language. Section 1, Paragraph 3, removed the cities’ discretion to determine what was in their best interest when assuming the responsibility of maintaining those improvements. Section 1, Paragraph 3, Subsection e, removed local government’s discretion to determine public benefit. Ms. Garcia voiced additional concerns over Section 1, Paragraph 5, which allowed provisions to be applied retroactively. Section 2, Paragraph 1, required the city to enter into binding agreements when tentative maps were filed. Sometimes tentative maps were completely disregarded or significantly changed before the final map was recorded. Her concern was over entering into a binding agreement with a tentative map and having that map rejected or changed significantly.
Mr. Robert Murnane, Acting Director of Public Works, City of Henderson, agreed removing the local government’s discretion in Section 1 could lead to future problems. Henderson currently maintained landscaping containing a common theme or where a large public benefit was realized. Perimeter landscaping, lighting and security walls built by individuals were not built with consistent standards. The city would be liable without the ability to monitor building standards. There were expectations of the maintenance agreements and questions over who would regulate them. Communities created without homeowner’s associations would need standards set by city councils. The city council would be burdened with issues not part of the business of government. The retroactive portion of the bill could create additional administrative costs. Potentially, over 300 subdivisions could be affected by A.B. 63.
Chairman Parnell asked Mr. Murnane if Section 1, Paragraph 3, and the section that concerned the retroactivity were the problems. Mr. Murnane believed if the changes were eliminated in Section 1, Paragraph 3, the retroactive part of the bill would not be a problem. He felt the trails and taking of property should be looked at separately.
Mr. Brown was concerned about the liability issue and questioned if trails were ever deeded to the city. Mr. Murnane stated trails were both public and privately owned in Henderson. The private trails were mainly owned by homeowner’s associations.
Dirk Richwine, Assistant Director of Parks and Recreation, City of Henderson, stated his concern over the retroactive issue in Section 1, Paragraph 5, Line 21. The city of Henderson was not able to review construction plans and did not know the standards used. A consistent set of standards and development guidelines for all publicly dedicated park properties had been established in Henderson. Many of those systems were built prior to that time. Additional personnel would have to be retrained, or hired, to manage those areas. Significant capital investment would be needed to buy additional service vehicles and lawn mowers.
With regards to trail systems, Henderson had a master plan identifying all master streets, highways and bikeways. Other developments had enhanced the plan by developing private trails that were HOA maintained and connected to the public trail system.
Madelyn Shipman, Assistant District Attorney, Washoe County, stated A.B. 63 was not intended to replace homeowner’s associations. Homeowner’s associations tend to fall apart if their only responsibility was the maintenance of exterior walls of landscaping. The bill was intended to replace homeowner’s associations that could potentially break down. Local government could control the maintenance of exterior walls. Those exterior walls mainly benefited the subdivision residents, but also helped beautify the city. The city of Reno had successfully used the legislation and Ms. Shipman wanted them to explain their process.
Tracy L. Chase, Deputy City Attorney, City of Reno, stated the city was currently using the legislation and created landscape maintenance districts by cooperating with the developers. A master ordinance had been created per NRS law. The developer was given a packet explaining what the city’s guidelines were. Parks and planning reviewed the developer’s petition for landscape plans and determined whether they would be accepted. Each landscape maintenance district had a special ordinance created for them. The city council decided if it was in the best interest of the city to accept and maintain the district. Currently five districts had been created and several others were pending. Ms. Chase expressed concern over the directive in A.B. 63 to mandate the process. Reno had been successful in using legislation and did not want a mandate.
Ms. Shipman stated most local governments would object to a mandate because of unique situations in their jurisdiction.
Chairman Parnell questioned whether Reno could continue to operate their program if the language was kept in and not deleted. Ms. Chase responded that her city could continue their program with the current language left in. Municipalities should use discretion when determining what was in their best interest.
Mr. Brown wanted to know how many landscape maintenance district applications had been received by Reno. Ms. Chase stated that five districts currently existed and approximately three were pending. No maintenance districts applications had been rejected. Reno worked with the developer and openly discussed items that were properly within the law and items that were not. They tailored what would be accepted by what NRS dictated.
Mr. Brown wondered if Reno had been able to determine assessments for homeowners as explained in Section 1, Paragraph 3, Subsection e.
Ms. Chase answered the city council had gone through each landscape maintenance ordinance and determined the public benefit. For example, one area was part linear park and part landscape maintenance district. The linear park had more public benefit and so the city absorbed part of its cost.
Mr. Brown wondered if some of the landscape districts were just exterior walls and lighting. Ms. Chase stated they had those areas as well. The individual homeowners were assessed according to the district they lived in. She did not know the exact figures of the assessments but would refer to Mr. Mann, who had calculated those figures.
Jeff Mann, Parks Manager, City of Reno, evaluated the cost of petitions from builders for landscape districts based upon project square footage and the number of trees within the area. Reno had previously maintained over a million square feet of streetside landscaping and knew what maintenance costs would run. Actual costs would vary according to those factors. Assessments could range from $6 to $21 per month per unit. Low-end assessments were based on a 270-unit subdivision with some streetside landscaping and a linear park. The high value was for a 38-unit subdivision with an acre of streetside landscaping. The streetside landscaping would typically not include lawns but consist of sidewalks, trees, shrubbery and associated irrigation systems.
Mr. Brown inquired as to the number of active residential developments in Reno. Mr. Mann replied the last figure reported had been around 90.
Ms. Shipman passed out an example of a completed ordinance (Exhibit C) and the application package and code requirements that Reno used (Exhibit D). The current law created landscape districts by ordinance and they do not want the language changed to require an agreement with the tentative map. The creation of the landscape district should be part of the final planning process.
Chairman Parnell reminded everyone the subcommittee would have to adjourn at 4:55 p.m. because of a meeting in the assembly chambers at 5:00 p.m.
Viola Goodwin, Planning Supervisor, City of Las Vegas, agreed with the cities of Henderson and Reno regarding the deletion of language in Section 1, Paragraph 3. She expressed concern that perimeter landscaping had not been defined and there was no way to determine the vastness of land included in those areas. A long-standing liability tradition had been that sidewalks were publicly held and privately maintained by the homeowner. Las Vegas had researched the possibility of making trails public property and keeping surrounding landscape areas private. To her knowledge, Las Vegas had never received or turned down a request from a developer to form a landscape maintenance district. Las Vegas had been working with the Homebuilders Association to address the issue of forming landscape maintenance districts. They adamantly opposed a state mandate on the issue because the issue should be determined on the local level.
Dan Musgrove, City of Las Vegas, reiterated no homebuilder in Las Vegas had used the provision for landscape maintenance districts. The homebuilders should try the law before wanting it mandated. Las Vegas was also concerned over the retroactive portion of the bill. Problems would arise with maintaining unapproved plans or maps.
Mr. Musgrove talked about S.B. 60 and its provision to protect cities regarding costs associated with mandated legislation. Any service provided to residents must provide a protection to recoup costs.
Mr. Brown questioned the number of active subdivision developments currently in Las Vegas. Ms. Goodwin replied approximately 300 to 500 subdivisions were developed in Las Vegas annually.
Neena Laxalt, City of Sparks, stated the bill was originally requested by Washoe County, Reno, and Sparks as an alternative to homeowner’s associations. She had not received an official position from Sparks but felt they would object to the mandate language.
Chairman Parnell talked about how A.B. 63 was of great concern to many people. The areas of concern seemed to be Section 1, Paragraph 3; Section 2, Paragraph 1; and the issue of retroactivity. Ms. Parnell questioned whether the proposed changes in the legislation could be salvaged. Sometimes legislation was introduced because of problems in specific areas. There were legitimate issues regarding the number of homeowner’s associations on the rise. Ms. Parnell would like a representative from the city of Henderson, city of Reno, and Mrs. Porter or Speaker Perkins to meet and bring back new language to the committee. Ms. Goodwin and Ms. Shipman requested to be on the committee. Ms. Parnell stressed the need to accomplish this in a timely fashion. She said any one who wanted to be involved in the discussion should notify her or Chairman Bache.
Seeing no further business, Chairman Parnell adjourned the subcommittee on A.B. 63 at 4:45p.m.
RESPECTFULLY SUBMITTED:
Glenda Jacques
Committee Secretary
APPROVED BY:
Assemblywoman Bonnie Parnell, Chairman
DATE: