MINUTES OF THE
SENATE Committee on Government Affairs
Seventy-First Session
May 7, 2001
The Senate Committee on Government Affairswas called to order by Chairman Ann O'Connell, at 2:33 p.m., on Monday, May 7, 2001, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Ann O'Connell, Chairman
Senator William J. Raggio, Vice Chairman
Senator William R. O’Donnell
Senator Jon C. Porter
Senator Joseph M. Neal, Jr.
Senator Dina Titus
Senator Terry Care
GUEST LEGISLATORS PRESENT:
Assemblyman David R. Parks, Clark County Assembly District No. 41
Assemblywoman Christina R. Giunchigliani, Clark County Assembly District No. 9
Assemblyman Tom Collins, Clark County Assembly District No. 1
Assemblyman Douglas (Doug) A. Bache, Clark County Assembly District No. 11
STAFF MEMBERS PRESENT:
Kimberly Marsh Guinasso, Committee Counsel
Juliann K. Jenson, Committee Policy Analyst
Sherry Rodriguez, Committee Secretary
OTHERS PRESENT:
Irene E. Porter, Lobbyist, Executive Director, Southern Nevada Home Builders Association
Daniel C. Musgrove, Lobbyist, City of Las Vegas
Madelyn Shipman, Lobbyist, Washoe County
Mary C. Walker, Lobbyist, City of Carson City, Douglas County, and Lyon County
Michael S. Lynch, Lobbyist, Builders Association of Northern Nevada
Carole Vilardo, Lobbyist, Nevada Taxpayers Association
Stan Olsen, Lobbyist, Lieutenant, Las Vegas Metropolitan Police Department, and Nevada Sheriffs and Chiefs Association
Phil Rosenquist, Lobbyist, Clark County, and Assistant Director, Comprehensive Planning, Clark County
Randall Walker, Director of Aviation, McCarran International Airport
John P. Sande III, Lobbyist, Las Vegas Helicopters, Incorporated
Greg Jenson, Attorney
Jerry Schlesinger, President, Las Vegas Helicopters, Incorporated
Bob McCune, Council for Tourism, Nevada Commercial Aviation
Karen Mullen, Director, Parks and Recreation Department, Washoe County
Steve Kastens, Director, Parks and Recreation, Carson City
Jeanette K. Belz, Lobbyist, Associated General Contractors, Northern Nevada
Terry K. Graves, Lobbyist, Basic Management Incorporated
Mario Bermudez, Assistant Planning Manager, Comprehensive Planning, Clark County
David S. Ziegler, Principal Research Analyst, Research Division, Legislative Counsel Bureau
Emily Braswell, Lobbyist, Director, Truckee Meadows Regional Planning Agency
Janelle L. Kraft, Lobbyist, City of Las Vegas
Chris Knight, Manager, Planning Department, Comprehensive Planning Division, City of Las Vegas
Chairman O’Connell:
We are going to start with a subcommittee. We will begin with Assembly Bill (A.B.) 458.
ASSEMBLY BILL 458: Authorizes local governments to impose impact fees on new developments to finance fire station projects, park projects and police station projects. (BDR 22-1000)
Assemblyman David R. Parks, Clark County Assembly District No. 41:
Assembly Bill 458 addresses impact fees on new developments. This bill adds fire stations, park projects, and police stations to the list of capital improvements for which a local government may impose an impact fee to pay the cost of construction or expansion necessitated by new development. In addition, if a local government requires a property owner to pay a residential construction tax for parks to dedicate, or improve land for a park, or to construct, or dedicate off-site facilities for which park improvement fees are imposed, the property owners are entitled to an appropriate credit against any impact fee imposed for a park project. This bill has the concurrence of both the home builders and local government, and is scheduled to become effective July 1, 2001.
Chairman O’Connell:
OK, thank you, committee, any questions?
Irene E. Porter, Lobbyist, Executive Director, Southern Nevada Home Builders Association:
This bill has been introduced at the request of the home builders association. This bill does not change the existing impact fee law; it adds additional uses to it. The bill was unanimously approved by the Assembly government affairs committee and had no opposition.
This bill adds parks less than 50 acres in area, police and fire stations, and clarifies traffic signals are included within the current definition of a street project in the statute.
When the impact fee law was written, it said, on street projects we would use the word “appurtenances,” meaning all the things included with a street project, and it implied traffic signals. There is some apprehension in local government to use them for traffic signals, because it does not specifically say traffic signals. We would ask for traffic signals to be clarified as part of street projects so they know traffic signals can be done with impact fees.
Section 2 adds the definition of a fire station project, “. . . a facility for a fire station or a fire substation.” It does not include a facility designed for the administration of a fire department, or any other use not directly related to fire fighting, and it does not include any equipment, including, without limitation, vehicles used for fire fighting.
Section 3, park project means “real property, turf, trees, irrigation, playground apparatus, playing fields, areas to be used for organized amateur sports, play area, picnic areas, horseshoe pits, trails, jogging, and pedestrian paths, tennis courts, areas designated for the use of skateboards and other recreational equipment or appurtenances which are designed to serve natural persons, families, and small groups and which are used for a park not larger than 50 acres in area.”
Fifty-acre parks are primarily neighborhood and community parks. They are not regional parks. We have expanded the things these funds could be used for as opposed to the more narrow definition used in the residential construction tax law. The types of facilities excluded are those normally found in a park which is larger than 50 acres, such as swimming pools, zoo facilities, and so forth.
Section 4, police station project means “a facility for a police station or a police substation.” It does not include the use related to the administration of a police department or any other use not directly related to the provision of police services, including, without limitation, the training of police officers or any equipment, including, without limitation, vehicles used to provide police services.
Ms. Porter:
Section 5 adds “sections 2, 3 and 4.” Section 6, line 16, adds “fire station project, park project, and police station project” to the definitions. Section 6 adds the words, “traffic signals,” to street projects to clarify this. Page 2, line 46 is crediting provisions you have to have for taxes already paid.
If an owner is required by a local government to: Pay a residential construction tax pursuant to Nevada Revised Statutes (NRS) 278.4983; (b) Dedicate land pursuant to NRS 278.4979 or otherwise dedicate or improve land, or both, for use as a park; or (c) Construct or dedicate a portion of the off-site facilities for which impact fees for a park project are imposed, the owner is entitled to a credit against the impact fee imposed for the park project for the amount of the residential construction tax paid, the fair market value of the land dedicated, the cost of any improvements to the dedicated land or the cost of the off-site facilities dedicated or constructed, as applicable.
If they build a park at the request of the local government, the park has to be credited for its full value against the impact fee, or if they build the off-site locations, or if they dedicate the land, or if they pay the residential construction tax, it has to be credited against the impact fee. It is to eliminate the possibility of double taxation.
Chairman O’Connell:
Committee, any questions?
Senator Care:
How and when would the fair market value of the dedicated land be calculated?
Ms. Porter:
It would be done with the local government. They would have it appraised or the builder would bring in what he paid for the land, which is the way it is usually done. It shows what the builder paid for the land, if he is dedicating the land, and what it is worth at the time. They do use appraisals in this process.
Senator Care:
I take it this does not happen often, if there is a disagreement between the parties as to what the fair market value should be?
Ms. Porter:
Yes, it happens on all our planned unit developments. Also, in the residential construction tax law there is a provision for appraisal to achieve fair market value by independent appraisal.
Senator Neal:
Why did you limit this to fire stations, parks, and police buildings?
Ms. Porter:
The law allows us to use it for streets, storm drains, and water and sewer projects. The local government can use any of those. We have added fire, parks, and police because we believe those are the types of projects you could directly relate to where it is necessitated by, and attributable to, new development, which is in the base law.
Senator Neal:
So, this was not intended to take away what has already been passed in the statute.
Ms. Porter:
No, sir, this is intended to add to what is already in the statute.
Chairman O’Connell:
Ms. Porter, in this expansion, how much additional are we adding to the cost of the home, or are we hoping this is going to balance the exactions local governments now get from home builders?
Ms. Porter:
It is a very good question because you do not really know what your costs are until you do the capital improvement program. You put this whole program together, and you find out how much the cost is going to be. The biggest thing we see is a more fair, equal, predictable distribution of costs on the developing industry. We are living with an exaction process now. You go in on a project, and one project might be required to put in a park, another project might be required to put in a fire station. We are paying money on traffic signals without the studies to back up why we are paying this money. It has become very unequal and unfair in the way it is done. This bill gives them another tool, and a better way to do it. This also spreads the cost across the whole community.
When you do an impact fee, and you develop what those fees are going to be, everybody pays, not just the person in the new home. If you have commercial, resort, industrial, apartments, single-family residential, or existing residents who are going to be using a facility in the service area, everybody has to pay their fair share. Reno and Washoe County have done it very successfully with streets and roads in using the impact fee law. We do not know at this moment if it is going to cost us more money or less money.
Chairman O’Connell:
Committee, any questions?
Senator Care:
A number of legislators from southern Nevada went into public schools a few weeks ago, one of the questions we were hit with was, “Why should builders not pay for schools?”
Ms. Porter:
We do pay on school construction. One way is sales tax. People do not understand how much sales tax is coming out of the housing industries. If you take a house being built, there is about $5000 to $6000 per house in sales tax coming directly out of it. Everything in the house has a tax, from the gravel and the pavement, to the air-conditioning unit, the lumber and everything else. So, when we are done building an average 1800 square-foot home, we are paying $5000 to $6000 in sales tax. We pay about 16 percent of the sales tax in this state. In addition, when the program was done 4 or 5 years ago, when the legislature put together a funding package for the school construction in southern Nevada, it was part of the room tax out of the convention center. Only in southern Nevada are we paying real property transfer tax which goes directly into a school construction fund as well. So, we are indirectly, with real property transfer tax, paying an impact fee for school construction right now.
Less than 50 percent of new residents are buying new homes; they are primarily buying resale units. First, residents can move in quicker, secondly, many of the resale units are at a lower cost. Now, you have a neighborhood and you are going to try to build a new school, and you want impact fees. You cannot use impact fees for the bonds, which is the first problem. They are not bondable; they are not a reliable source of revenue. Then you have to meet the rational nexus test. We know with the school zoning problems, for example, if you paid $1500 for an impact fee from your house for the neighborhood school, what would you say when your child has to be rezoned because the school is over-crowded. How are we going to handle not zoning those children out of the neighborhood school, or out of the junior high, or high school when their parents have literally paid a tuition fee for them to be there through the use of impact fees? You are going to play havoc with the whole concept of zoning.
Ms. Porter:
I had this discussion with the former superintendent (of the Clark County School District), Brian Cram, I have to say Mr. Cram came back to us 4 years ago and said, “You know, you are right, it is going to be harder for us to pass bond issues because people are going to think these impact fees are taking care of it. We are not going to be able to raise the kind of money we need, we are going to have tremendous problems with zoning and rezoning children, and we need to make schools the responsibility of the entire community.”
Only one-third of the public in Nevada has children in schools. Yet, what are you going to do when you have all the people moving into the Sun Cities and the Anthems and those areas which do not have any children in schools at all, are they going to pay an impact fee when there is not a neighborhood school? I think if we try to embark upon impact fees for schools, we are going to find ourselves in a mess.
Chairman O’Connell:
For the committee’s information, prior to this bill, it was figured about 25 percent of the cost for every new home was due to regulations, fees, and taxes from local and state government. A large amount is tacked onto a home. Also, the last time I looked, 18 percent of the sales tax was paid by home builders or their support teams. Will the park tax be incorporated into this, or is it still going to be in addition to?
Ms. Porter:
It will be credited against an impact fee. Senator O’Connell, it is between $25,000 and $30,000 per house in fees, taxes, exactions, and other types of things we have to build. I believe we have 57 separate fees and taxes we pay on the construction of a home.
Chairman O’Connell:
Is there anyone else in support of A.B. 458?
Daniel C. Musgrove, Lobbyist, City of Las Vegas:
We are in full support and believe local governments need these tools to be able to allow growth to pay for growth.
Madelyn Shipman, Lobbyist, Washoe County:
When we did regional street impact fees in Reno, in 1991, we had done a study. We dealt with projects approved with exactions prior to the enactment of the actual ordinance. It is important to note when we did the study we ended up saying there was no difference, the dollar value for the exactions already placed on projects was approximately the same value collected had we gone back and retroactively done it with impact fees.
The difference is, the dollars were not spread evenly among all construction. Actually, the key for impact fees is a way to pencil out a project in advance, the consistency of knowing what your fees are going to be. It is not an additional fee; it will be an additional fee for those developers and builders who have previously escaped the exaction process. Those are the folks under an impact fee who would end up paying a fee. What it does is spread it out among all developments. It is not an added cost. Impact fees make it a fair way to spread the cost of these needed facilities of a new development.
Approximately 5 years ago, we looked at it in Washoe County; we figured it would be more than $20,000 a house. Schools cannot be appropriately funded if building stops, you do not have a funding source. You have no way to guarantee bonds on a consistent basis; you cannot buy in advance with impact fees. If there is a downfall in the economy, or if the housing industry slacks, or you have an area fully developed and there is no building going on, you do not have an income stream to support those bonds. So, school projects are normally more appropriately done through a larger funding revenue base, which would be the bonding process.
Mary C. Walker, Lobbyist, City of Carson City, Douglas County, and Lyon County:
We support A.B. 458. This is important in the rural communities, because it is an avenue of revenue source not currently available to them. If you think of Lyon County where we have one or two areas of the entire county growing and the rest are not, currently the only way we can get funding for these types of projects is to take tax sources from throughout the county, even the non-growth areas, in order to pay for the growth areas. I agree with Ms. Shipman, this is a much fairer way to receive revenue for areas which will benefit.
Chairman O’Connell:
Is there anyone else in favor of A.B. 458? Is there any opposition?
Michael S. Lynch, Lobbyist, Builders Association of Northern Nevada:
I am here today to speak against A.B. 458. Not to undo the benefits put forward, but when they talk about replacing the exaction process existing now, and as it exists in Clark County, it does need to be fixed with anything possible. This is a life jacket thrown to those people to keep things going and to get the needed facilities built.
Sparks is building fire stations, taking care of public facilities, flood control, and it is fair and equally distributed amongst all the developers, they voluntarily agree to it. We look at the arguments against schools the same way for fire, and police, those services benefiting the entire community should be paid for by the entire community. The fire station with two fire trucks is paid for by a subdivision through the impact-fee process. Those fire trucks are going to respond to any big fire in the community, which is an overall benefit to the community, and we would like to see it paid for and shared by the community as a whole.
The political argument with looking at impact fees for schools and having a negative perception on passing of future bonds, the same thing exists in Sparks, we just lost a tax-override advisory question to hire more firemen and more policemen. It is the operations and maintenance the local government truly really needs the most help with. An impact fee process will not address this. So, we are in opposition to A.B. 458.
Chairman O’Connell:
Did you make your opposition known to the other side?
Mr. Lynch:
No.
Senator Neal:
Are you opposed to all of the impact fees or just opposed to those for the fire station, police station, and parks?
Mr. Lynch:
We absolutely support the process wholeheartedly; where the direct impact is created by new growth, where there needs to be an extension of a sewer line, where there needs to be the expansion of a road, whether it is a level of service of physically extending it, flood control projects, things directly attributable to growth, those new homes or new commercial projects will be benefiting, they should pay for it. The general public should not subsidize it, but it is hard to quantify how many houses it takes before you need a police or fire station. It is part of an overall public safety plan; how do you quantify what is to be paid?
Mr. Lynch:
This is strictly for northern Nevada, we feel the process we have has been working quite well. The hard thing is, how do we get more firemen, how do we get more cops out there patrolling the streets?
Senator Neal:
In northern Nevada, does the home buying public select the places where these subdivisions are going to be built, or where the development is going to take place?
Mr. Lynch:
They have a reasonable master plan, which is updated every 5 years. They take extensive public comment so they do have the opportunity. Public participation is not as good as it should be. Right now, we are going through a reasonable master plan update, it is a yearlong process with many public hearings. We do invite the public to provide input as to where those new developments will go.
Senator Neal:
Your argument is, since the police station, or the fire station projects would have to respond and go anywhere they are called, this burden should be borne by everybody?
Mr. Lynch:
I think the capital construction should be part of the overall provision of public safety, so it would come out of the general tax base. Currently, developers agree to help provide the capital construction, which sometimes proves to be a more efficient method than making it a formalized public project. We have entertained possibilities of expanding existing commercial developments into fire stations to provide more service because we do not have the ability to build a new one.
Senator Neal:
Are you telling the committee, in order to have these projects, you support the increases, and to have their own taxes to do it?
Mr. Lynch:
I think it is most properly built with the bonding mechanism.
Chairman O’Connell:
Are there any questions?
Carole Vilardo, Lobbyist, Nevada Taxpayers Association:
I had not intended to speak on this bill, we were in favor of it and have supported the bill, but hearing the opposition’s testimony, I think there is just a couple of quick points I would like to make on this.
Impact fees provide a uniform system to anybody who is going to develop. One of the advantages you have with the bill before you (A.B. 458) is, you will have all developers who are in the mix, whether they are residential or commercial, in addition to which, it is a very established process, no one is treated any differently than anyone else, once you set it up. So, I would urge your passage of this bill.
Senator O’Donnell:
In this bill, are there different levels of impact fees for one community over another, or would it be uniform throughout the entire Clark County area?
Ms. Vilardo:
It depends on the ordinances which the individual entity adopts relative to the impact fee. The Cities of Reno, Sparks, Boulder City, Henderson, Las Vegas, and North Las Vegas, and Washoe and Clark Counties choose what their process is, and establish an impact fee through a regular process of hearings.
Senator O’Donnell:
So, it would be set up by a government entity?
Ms. Vilardo:
Correct. There are some people here from Clark County who are in a much better position to answer than I am.
Ms. Porter:
Madam Chairman, perhaps I can assist with an answer to the question. The base impact fee law is you set up service areas for different types of projects, for instance, a service area for a police substation, or a service area for a fire station. Fire departments have a circumference service area for a fire station; this would become the service area. You would take the cost in your capital improvement program of building a fire substation, then you would have a level of service existing in the community, and you determine the level of service for the service area, you look at the cost of the project, spread over all of the land uses within the service area, and you come up with a formula for the impact fee.
You might have a residential area in one community paying a different impact fee for fire stations than a residential area in another community, it depends on what is in the service area, and it depends on the cost of the capital improvement.
Senator O’Donnell:
I can see where in some areas of a city or town, it would be more dense. If there is a lot more density, zoning wise, then you are going to have a lot more impact in terms of fire and police. You would want a higher impact fee, or an impact fee to mirror what you need in terms of the facilities for police and fire. I am okay with it now.
Chairman O’Connell:
Are there any questions? Is there anyone else wishing to speak on A.B. 458?
Stan Olsen, Lobbyist, Lieutenant, Las Vegas Metropolitan Police Department, and Nevada Sheriffs and Chiefs Association:
We are in support of this legislation, we have a program in place to determine at what level we need to put in new substations based on population and manpower, and the amount of people a single police captain at a station can handle. This bill fits right in. We are grateful to the home builders for bringing this forward.
Chairman O’Connell:
Is there anyone else on A.B. 458? OK, we will close the hearing on A.B. 458 and open the hearing on A.B. 182.
ASSEMBLY BILL 182: Makes various changes to process of land use planning in certain counties and revises provisions regarding members of town advisory boards in certain counties. (BDR 22-57)
Assemblywoman Christina R. Giunchigliani, Clark County Assembly District No. 9:
This bill codifies a few items in the master plan. It puts in such things as paths for bicycles and pedestrians. It limits the number of amendments to master plans to four times a year. The bill looked at rural advisory boards; rural advisory boards were concerned about notification which had a different problem than when they were contained within the incorporated city.
On pages 7 and 10, we tried to make it pertinent regarding notification and how the person applying for a zoning district change would be dealt with, the time lines. Further, it requires appointees to town advisory boards would participate in trainings.
Section 11 allows for appointment, or by election, for town boards and town advisory council. Finally, A.B. 182 sets up a term of office for those who serve on town boards so there is more of a variety of individuals rather than the same person over and over. This bill passed unanimously on the Assembly side.
Chairman O’Connell:
Committee, any questions? Is there anyone here who wishes to testify in favor of A.B. 182?
Ms. Porter:
Assembly Bill 182 is a bill we originally opposed, but we had the opportunity to sit down with Assemblywoman Giunchigliani and do some significant changes. The Southern Nevada Home Builders Association had specifically asked for the term limits for the town board members, the reason being, these town board areas are very large, there are 250,000 and 300,000 people in some of the urban town board areas. What we have seen in dealing with the town boards is the complete complexion of those town board areas have changed over the years. We are not getting the change in the town board people to be able to reflect how the people think in those areas. This was one of the reasons Assemblywoman Giunchigliani wanted to have the training, which we also support. We thought there should be term limits and a wider opportunity for people in those large areas to get involved and not have the same people reappointed for endless amounts of time. We support this bill and particularly those two aspects will be important additions to the functioning of town boards.
Phil Rosenquist, Lobbyist, Clark County, Assistant Director, Comprehensive Planning, Clark County:
(Written testimony and suggested amendments [Exhibit C] were handed out to the committee for their review and consideration.) We are in support of this bill. We did testify in the Assembly in support of it with some amendments. Some of the amendments were primarily of a clarification nature; we would like to thank Assemblywoman Giunchigliani for working with us on those amendments. We did not have an opportunity to look at the final verbiage of some of the amendments relating to the town board until recently. Based on this, we have a minor clarification amendment.
What we are trying to do is put in some clarifications to coincide with the cycle of the way our citizens’ advisory councils and town advisory boards meet. In order to cycle those meetings, to line them up with the way our planning commission and board of county commissioners meet, we made some language clarification changes regarding the timing of those notifications. We do support the training requirements for the town boards and all the other provisions. We just want to make sure our time cycle works so we are not delaying the applicants.
Chairman O’Connell:
Assemblywoman Giunchigliani, starting on the bottom of page 1, subsections 3 and 4, are we talking specifically about a larger county?
Assemblywoman Giunchigliani:
Yes, especially, because of the master plans, the rurals do not have all of those components, which is why those sections are dealing with larger counties. Mr. Rosenquist’s amendments are fine with me.
Senator Porter:
Regarding the appointment process and the term limits, my understanding, the county commission makes the appointments now, correct?
Assemblywoman Giunchigliani:
Correct.
Senator Porter:
Why would we need to put term limits on an appointed position? I understand it is good for the community and the argument of more people getting involved, but there may be someone very qualified and would like to serve a second term.
Ms. Porter:
There would be nothing wrong with them being out for a couple of years and then coming back again.
Senator Porter:
Is there a term limit on planning commissioners?
Ms. Porter:
No, most planning commissioners cannot stand it more than one or two terms.
Senator Porter:
If it is appointed at the will of the commission, could they not make the decision as to the representative?
Assemblywoman Giunchigliani:
Yes, however, this allows them the opportunity to make a different decision. Politically, some pressures are there which they would not normally have. At least this gives them some additional empowerment, or at least makes it clear. It also does not prevent them from reappointing after a 4-year term because they are currently 2-year terms. They could have two 2-year terms and could reappoint after they sat out for a short period of time.
As Ms. Porter said, the rural areas are not really the problem; it is more the urban ones which used to be small. We felt this was the more appropriate way.
Senator Porter:
In a more rural area of Clark County where you have some members who are elected by a “straw poll,” how does it fit into this language?
Assemblywoman Giunchigliani:
The “straw poll” is allowed and is why I put the language in there, as a request from the rural areas. They would make the recommendation, but again, it is permissive because it is still up to the commissioners if they want to choose the individual.
Senator Porter:
Would the one elected by “straw poll” also be term-limited?
Assemblywoman Giunchigliani:
Yes.
Senator Porter:
So, now, instead of a 2-year term they are 4-year terms, they have to sit out for 2 years to come back for 4 years?
Assemblywoman Giunchigliani:
Correct.
Mr. Rosenquist:
Our planning commissioners are appointed directly by county commissioners. So, basically, what it means is, if we get a new county commissioner, they are usually willing to make their own planning commission appointments. As a commission seat changes, a planning commission member changes also.
Senator Porter:
As opposed to the full commission making a member appointment to an advisory board?
Mr. Rosenquist:
Yes, Senator.
Senator Titus:
I like this bill, especially section 4, which says you cannot change the master plan but once every quarter.
Chairman O’Connell:
Are there any questions? Is there anyone who wishes to testify on A.B. 182?
Mr. Musgrove:
The City of Las Vegas does many of these things including, the section Senator Titus referred to, in terms of four times a year. We believe it is important. Other than the town board section, which does not apply, we are in full support of the bill.
Chairman O’Connell:
Anyone else? Is there any opposition to the bill? OK, we will close the hearing on A.B. 182 and open the hearing on A.B. 490.
ASSEMBLY BILL 490: Requires certain counties to establish committee on abatement of noise attributable to flight of certain helicopters and certain other aircraft and to enact ordinances concerning certain helicopters. (BDR 20-154)
Assemblywoman Giunchigliani:
This bill applies to southern Nevada; there has been an issue for the last 3 to 4 years regarding the noise of helicopters and how they are cutting over, in many people’s minds, their properties. Not all helicopter owners are doing it, which is part of what this bill is attempting to get at.
There needs to be some public input, which is the purpose of the first section. It outlines who the committee members would be, it would people who live in neighborhoods located adjacent to the airport. It would be members representing commercial operators of fixed-wing and helicopter aircraft, someone from the county airport, and a member from the federal accounting agency which regulates airports. It lays out their terms and what they could recommend to the county commission.
Apparently, the county does work with the Federal Aviation Administration (FAA) when they determine the paths and the hours. If the FAA makes a suggestion, they tend to enact the suggestion. It is our belief we could suggest different routes if the original routes were a problem.
The signage in the bill was just more from the ground level, how high you could view the signage on an aircraft. In addition, it exempts police and medical helicopters from this legislation. You have one document there with just times (Exhibit D), from a woman on 8th Street, she sat down one day and tracked every minute you see there, of the flight paths.
Assemblywoman Giunchigliani:
Instead of going down Charleston and Las Vegas Boulevards like they should, helicopters were cutting over by a park and cutting across the property. The FAA does not treat helicopters the same as fixed-wing airplanes. Part of what this legislation calls for is for us to work with Congress to do what they did in Hawaii, or to have them approached in a similar fashion to fixed-wing airplanes, because then you can get to the height standard a little bit more. I have faxed this to the FAA, asking them to have their attorneys look at it to make sure everything is in compliance.
This is a huge issue in southern Nevada, the complaints have increased in the valley, and I think every major city in the United States is faced with airport noise whether it is from helicopters or not. This is the specific area which is most noticeable, and the area this legislation is attempting to impact.
Senator Care:
Who exactly are these guys, tour operators and construction workers?
Assemblywoman Giunchigliani:
Basically, I believe there are five or six companies in southern Nevada, one is located on the Strip and flies out down by the old MGM Grand Hotel Casino. Most of them are tour operators going out to the Grand Canyon, coming back and going around the Stratosphere Tower Hotel and Casino, then heading back down.
We wanted to make sure we were going after the right individuals, which is why we came up with the idea of the lettering size, so it was properly reported. We are now one of the busiest airports in the world. This is not an attempt to stop any businesses from doing what they are doing; Congress is dealing with whether or not they still allow flying through the Grand Canyon.
The FAA will approve a license, but it is still up to the local government to issue the business license. If their business license requires them to work during certain hours, they need to comply; otherwise they should not qualify for a business license and, therefore, they would not qualify to fly. They go hand in glove, rather than being exclusive of each other. This is what we were trying to capture in A.B. 490.
Senator Titus:
It seems to me the county says it is the FAA’s responsibility; we cannot do anything about it. I do not believe this is true. If these tours go out to Hoover Dam and out to the Grand Canyon, have they looked at having them based at the Sky Harbor Airport in Henderson or North Las Vegas? It seems for safety purposes as well as noise, it would be a better way to go. Sometimes convenience is not the most important consideration.
Assemblywoman Giunchigliani:
Yes, it did come up at the town hall meetings, there was a suggestion made, maybe through those airports they would be traveling down the highway, which already has the noise abatement, so they would not be near neighborhoods as close as they normally are.
Chairman O’Connell:
Are there any questions for Assemblywoman Giunchigliani? Is there anyone else in favor of A.B. 490? Any opposition?
Randall Walker, Director of Aviation, McCarran International Airport:
We are in a difficult situation because on the Assembly side, we actually were in support of the bill, we understand the problem and the concept. We did recommend a few changes, none of which were considered when the bill was passed. There was a significant amendment tacked onto the bill at the tail end of the hearing; we never saw the actual language until shortly before the bill passed in the Assembly.
I would like to go through the information I have provided you and then go through the bill to tell you our concerns. In section 4, although we would like to do a lot of these, not only for helicopters but for other aircraft as well, the federal government has preempted all of this. We had our district attorney’s office provide for you an analysis of this preemption, which is the first thing in your package (Exhibit E). This is something many communities have addressed, a lot have gone through this process of the noise which they actually have worse noise problems than we do, none of them have been successful because of this federal preemption. This paper talks about what the federal preemption is and what the risks are.
We do not really have a problem with being able to have some of this authority if it were available, it just is not.
Mr. Walker:
The next photo in your packet (Exhibit F) shows a 1955 aerial view of the airport. You can see the airport was built in the middle of the urban area. We had a gentleman call about 6 months ago, to our noise hot line, wanting to know which “idiot” put the airport in the middle of town. I sent him a 1955 photo, and you can see we actually built the airport out in the middle of nowhere, then the community grew up around it.
If you go to the next graph (Exhibit G), these are noise complaints we receive. We have a noise hot line at the airport, and we track anybody who calls to complain about the noise. You can see we had some noise complaint peaks in 1997 and 1998, which resulted from some runway renovation work we were doing. We had the aircrafts departing more to the south than normal, and we had a lot more complaints than normal.
Our noise complaints for fixed-wing aircraft have actually been falling. But, the noise complaints for helicopters have been increasing very rapidly. The fixed-wing aircraft noise has been falling because, in 1990, as part of this preemption information, Congress passed the Airport Noise and Capacity Act of 1990 (ANCA). One of the things they did for aircrafts over 75,000 gross pounds, they implemented a “phase-out” of noisy aircrafts. All the stage-two aircraft had to be phased out by 2001. Unfortunately, the airlines were creative in compliance, so we have some of the noisier aircraft still hanging around. But, a significant number of noisy aircraft went out of service and were replaced by quieter aircraft. So, the aircrafts are much quieter today on average than they used to be, but helicopters are going up rapidly.
On the next sheet (Exhibit H), this is helicopter tour operations. The numbers you have been quoted are not far off from what we found on April 20, 2001. Up until now, we have actually had a hard time tracking the number of operations, but last month we actually were able to implement an ASR9 (Airport Surveillance Radar System model 9) radar feed into the airport where we can track, in real time by computer, the FAA’s data. We capture the information and create these graphs. On April 20, 2001, we had 74 tour operations leave McCarran International Airport and go down Tropicana Avenue to the Grand Canyon. When they come back, they come back along Charleston Boulevard to pick up the Strip tours. This is daytime because they do not go to the Grand Canyon at night. We also had 17 operations which circled the Strip, those are all at night, and then we had an additional 5 operations circling the Strip in a different pattern from the other 17. So, we had a total of 96 helicopter operations on this one day for non-hospital or police helicopters, which is a lot of helicopter noise.
Mr. Walker:
Five years ago you may have had only ten helicopters transversing this same area. In fact, the Charleston Boulevard route probably did not get any, because they did not go down Charleston Boulevard to the Strip, and they have just added this section recently. Now, you have a significant amount of helicopter noise. Particularly on the Charleston Boulevard route, you can see the spreading of traffic; each one of those lines is a helicopter. They are not keeping a tight configuration, so they are traveling over a number of homes instead of keeping right on Charleston Boulevard, and we are working with those areas. So, a significant amount of noise has been generated by helicopter tours.
If you go to the next foldout (Exhibit I), this is the noise contour for all aircraft over a series of time. The red line is the 1992 noise contour; you can see where it went. In 1997, you can see the orange line exposure, and then in 1999 you can see what has happened with the noise exposure. The noise contours are shrinking, which goes in line with what I told you about the phase out of the noisier fixed-wing aircraft. You can also see we grew by 20 percent in operations from 460,000 annual operations to 552,000 annual operations, from 1992 to 1999. We actually shrunk the area which was in a high-noise contour from 20 square miles to 11 square miles; the impact we are having is with the less-noisy fixed-wing aircraft over 75,000 gross pounds. The problem is, helicopters and small aircraft, many of which can be as noisy as the large aircraft, are not regulated in terms of noise. This was one thing Congress opted not to do.
If you go to the next foldout (Exhibit J), you can see the 1999 noise contours and the cooperative management area, as defined by a cooperative management agreement we entered into with the Bureau of Land Management (BLM) in 1991. This allowed us to manage land the BLM owned within this area. Subsequently, under the Southern Nevada Public Lands Act, this land has all been transferred to the airport under our ownership for management for noise compatibility purposes. What you see is our main take-offs to the west, which are 70 percent of our take offs, and are the nosiest operations we have. We now control a significant amount of land which we will not allow, and cannot allow under the federal law, to develop in an incompatible manner; so there are no homes, schools, hospitals, or any of those type of things. Unfortunately, areas to the north and east are totally urban developed and there is not a lot we can do about it. You can see we have a good plan to make sure we do not have any additional noise. I think there is a problem with the exemption in the bill for military use.
Senator Neal:
Let me ask a question. In 1998 the county commission was considering a buffer zone of 60 decibels (db), as you call them, for aircraft. Why would they be considering this if they did not have the authority to do anything about it?
Mr. Walker:
It was our recommendation from the airport, to require notification or disclosure to anybody who was buying a home in the 60 db DNL (day-night average sound level) range area, even though this is not considered the high-noise area. Even though the average is not high, you might have some significant single-event noises which create a problem for people living in this area. We felt it was appropriate from a disclosure standpoint, for people to be made aware of this before they buy their homes. The community did not agree with us, both the real estate group and a significant number of existing home owners, because they did not want to have to disclose this information when they go to sell their homes. They lobbied the board against our proposal and the proposal did not pass.
All it is, is disclosure. In other words, if you were going to buy a piece of property, we would require the property owner to disclose to you, as a condition of sale, you are buying property in this noise contour, so you would be aware of it.
Senator Neal:
As I understand it, they were in discussion with the FAA in terms of lowering the noise level for aircraft coming into the McCarran International Airport.
Mr. Walker:
No, that is not correct. There was no discussion with the FAA in terms of what kind of aircraft could come into the airport. Federal law preempts it. The airlines would certainly sue us if we tried to do such a thing
Senator Neal:
Can you tell me how complaints are handled from a local standpoint in terms of addressing FAA, or Congress, or whoever, in terms of these problems?
Mr. Walker:
We do have some restrictions the airport placed on itself before the Airport Noise and Capacity Act of 1990 went into effect. For example, on the north/south runways we have curfews from 8:00 at night until 8:00 in the morning, weather permitting. If there is a violation of this curfew, we will work with the FAA to try to find the pilot who violated it and then take corrective action.
We had a situation in taking off to the east because we have an environmental document which restricts easterly take-offs to 3 percent of the total traffic annually. We had a FAA air traffic control manager who decided he did not want to abide by the restriction and started taking a lot of traffic off to the east where we have not protected for noise very well. We started getting significant noise complaints from those residents. When we checked it out, we found they were violating the environmental restriction. We had to bring another section of the FAA in to convince the air traffic control division they were in error and they fixed the problem. We do take action when we find something in violation of an existing rule or regulation which should be enforced.
Senator Neal:
Are the citizens who live in and around the airport aware of the recourses available to them when they have these types of problems in terms of noise?
Mr. Walker:
Yes, we work with them. If we see there is a specific violation of a rule or regulation which has created the noise complaint, we will work with them and try to give them the same information we have in terms of how you get recourse through FAA flight standards, or through the airport division, or the air traffic control division of the FAA.
Senator Neal:
Do you assist them?
Mr. Walker:
Yes, absolutely.
Senator Porter:
Based on your letter dated May 2, 2001, you stated the only process to regulate noise is through the “Part 161 study [Title 14 of Code of Federal Regulations (C.F.R.) Part 161].” Are you suggesting, if you were to do a “Part 161 study,” it would be a waste of time?
Mr. Walker:
San Francisco tried a Title 14 C.F.R., part 161 study and failed; they have a lot more noise problems than we do. They completed the study, submitted it, and it was not approved. Naples, Florida just finished a part 161 study, submitted it to the Federal Aviation Administration, was denied, and went to court and lost at the first court level in the federal jurisdiction. Other communities with much worse noise problems than ours have gone through the part 161 study. Part 161 was basically adopted by Congress with input from the aviation community, not the airport community, and it is impossible to comply with the process. The cost-benefit analysis shows the cost benefits of the noise savings have to outweigh the cost associated with the increased cost to the airlines and aircraft operators. It is almost impossible to do.
Senator Porter:
Do you feel, today, you are doing all you can, and if not, are there some steps you think you can do?
Mr. Walker:
No, we think we are doing all we can. I want to walk you through a couple of things we are doing without community awareness.
Senator Porter:
So, you are suggesting there are not many more things you can do?
Mr. Walker:
No, and I will give some suggestions as to why we think the original version of the bill might have some benefit.
In terms of the exemption in the bill for military aircraft, this foldout (Exhibit K) shows the Henderson Airport, and you will see just to the left, below the airport, an Army National Guard facility. It just came to our attention, the Army National Guard is attempting to acquire this property from the BLM. Part of their master plan is to put a helicopter facility right there in the urban area. This would be far worse than any of your commercial helicopter operations. So, if you are going to do something about helicopter noise, I would suggest you not exempt military aircraft from the consideration of helicopter noise.
In the last handout (Exhibit L), this is our project implementation schedule for terminal three. Terminal three is going to be along Russell Road, it is a 14-gate facility, which includes about 6 international gates. When you look at it, from start to finish, we start in the first quarter of 2000 and end in the middle of 2007, which is how long it takes to get a terminal facility built today.
All of the red areas are public input points in our process where we have to go to the board of county commissioners in an open public meeting, which is posted, or we have a public hearing. We actually have five public hearings and the rest of these are meetings before the board of county commissioners. These do not include the types of meetings we would have to award a contract, or award a bid. This is a significant process we already go through with a lot of public input into our facilities.
Basically, the amendments seen in section 3 and some of the issues of section 4 are a real problem for the bill. If we could get to the situation where we have created an advisory committee to look at helicopter noise, make recommendations to the FAA, through the board of the county commissioners, on issues which should be changed so we could address this issue more effectively at the local level, we would be in total support. We could use some help on these issues. These are very difficult issues; we are working with the FAA now for some new routing. We can suggest routes, and sometimes we are successful in getting the FAA to consider those routes. We have worked with the helicopter operators over a couple of years; we have been addressing this issue to find additional routes. A new route called the “Sloan route,” which at least for those going to the Grand Canyon, would come out of the airport and follow the railroad tracks out to Sloan, so we could completely eliminate the Tropicana Avenue route in its entirety. We are working with the FAA on this, but they have not given us an indication they would agree. We are hopeful, in the next month or so, we might be able to test the route, and if it is successful, we will be able to accomplish our goal.
Mr. Walker:
We are working with them to tighten up the Charleston Boulevard route, which is something we did a few years ago with the Tropicana Avenue route, to change the routing structure to follow the center line of Tropicana Avenue all the way out. It stays on the major roads and away from flying over the residences as much as possible. We think the FAA is going to agree to do this, but we have to get approval from Nellis Air Force Base because this conflicts with some of the Nellis Air Force Base air space. We are working on these issues. We would support a citizens committee to look at those kinds of issues, but having a citizens committee involved in all kinds of issues; i.e., environmental issues, expansion of the airport, and things not having to do with helicopters, we think is inappropriate.
One of the amendments on page 3 is an exemption for fixed-wing aircraft, which are 14 C.F.R. Part 121 and Part 135, which include carriers encompassing all commercial aircraft. So, a commercial operator of fixed-wing aircraft would be appointed to the committee, but those aircraft are exempted from consideration by the committee; it seems strange to put somebody on a committee for issues which do not concern them.
I think a lot of issues in this bill need to be corrected. We would like to work with the sponsor to come up with a bill we think would be appropriate to address just helicopter noise and a citizens committee. But we think the rest of this has gone beyond the original intent and will create an undesired effect on the ability to own and operate an airport in an efficient manner.
Chairman O’Connell:
Mr. Walker, let me ask you a question on this Henderson map. Is there any influence we can have at all with the helicopter airport?
Mr. Walker:
I think they may be rethinking their proposal. I tried to persuade them it would not be a good idea to put a helicopter facility there. Certainly the state would have a more persuasive effect than we would on the National Guard.
Chairman O’Connell:
Would you suggest a letter from us, maybe from the commission?
Mr. Walker:
Yes, I think it would be effective.
Chairman O’Connell:
OK, if you would get the information to me as to whom the letter would need to be addressed, we can take some action.
Senator Porter:
Have we considered any additional sites, possibly the BLM land or somewhere else close to the area?
Mr. Walker:
If we could get the helicopter operators to agree to take their Grand Canyon tours out of the urban area, we think we could find a site and build a helicopter facility to allow it. They would have to transport their customers out to the new site, and then they could go on the Grand Canyon tour. This would solve the Grand Canyon part, but it would have to be voluntary. They would have to agree to it. The concern we all have is, if we take them out of the airport and then another helicopter comes in and competes with them from the airport, we cannot stop it from happening.
Senator Porter:
In your master plan, have you looked for other sites for helicopters?
Mr. Walker:
We have not. Helicopters do not need to be at an airport, there is no requirement. We have never built anything for helicopters anywhere in our system.
Senator Porter:
It seems to me they are a very important part of our economy and a big part of our tourism base, maybe we ought to be looking at some facilities for helicopters.
Mr. Walker:
It may be true. I get very little money from them in terms of running the airport. I am the one who answers all the noise complaints and tries to solve this issue. I wish they would go somewhere else off the airport and let somebody else deal with them. We would certainly work with the committee to solve this issue.
Senator Porter:
I would think, as we look at this very serious problem for a lot of residents, although the airport was there first, there is still a problem in trying to find solutions. Possibly we could find a site not far away from McCarran International Airport.
Mr. Walker:
Actually, Maverick Helicopters Incorporated would like to put a facility right there at Railroad Pass in the open area controlled by the BLM. They think they could transport their passengers to this location, and then fly to the Grand Canyon. They are willing to take a look at the possibility. I am not sure the other helicopter companies are as willing. Certainly, if there were a desire, we would work with the operators to try to find a site and develop it.
Senator Porter:
Has the county commission looked at this?
Mr. Walker:
Yes. We have been doing a lot of base work in doing the noise studies for helicopters, specifically. We have been doing a lot of monitoring of flights. We have been developing a base status, so we can identify what the real problem is and try to come up with solutions working with the FAA. I think we are going to be successful to a certain degree. But as long as you have 70 to 100 helicopters flying down Tropicana Avenue and Charleston Boulevard, there really is nothing we are going to do to totally solve the problem, short of moving them to a different location.
If we could get the Grand Canyon operations to the edge of the valley and fly directly to the Grand Canyon and back, then we are just dealing with the Strip tour operators who operate at night. Then out of the 96 counted on April 20, 2001, we are dealing with a total of only 20 something flights.
Senator Neal:
Do you consider noise to be a health issue?
Mr. Walker:
It can be.
Senator Neal:
Has it reached the level, in terms of complaints you are now receiving, to be a health issue?
Mr. Walker:
According to the studies, anything in a 70 DNL or higher can be unhealthful. We have no residents living in the 75 DNL noise contour at all. Very few living in a 70 DNL, and we are buying all of the homes in a 70 DNL, and tearing them down, so there is no noise compatibility issue.
Senator O’Donnell:
I have a couple of questions regarding the helicopters leaving the Strip area. Does the FAA control tower determine the altitude of helicopters leaving the airport and cruising around the Strip area?
Mr. Walker:
They determine the height of all aircraft operations.
Senator O’Donnell:
What is the floor on your restricted area?
Mr. Walker:
Actually, all of what you see there where they are operating is class B and is controlled by the tower.
Senator Porter:
Is it zero to 9000 feet?
Mr. Walker:
Yes, approximately. If you look at the area north of the airport, the helicopters are at 1000 feet above ground on take-off and arrival. Above, the departures from North Las Vegas Airport are at 1500 feet above the ground. The arrivals to North Las Vegas Airport are 2000 feet above ground. The arrivals to McCarran International Airport are 2500 feet above the ground, departures are about 3000 feet above the ground. So, you have all these aircrafts stacked vertically in this air space, with a 500-foot separation. To move one up, you need to move them all up. The problem then is, on arrival, you have the 3 percent glide slope maximum, so, if you get them higher than the arrival you cannot land them. So, you cannot bump anybody up without affecting everybody else in the air space. This is why helicopters have to stay at 1000 feet above the ground. We have a very constrained air space.
Senator O’Donnell:
Most of the flights going to the Grand Canyon, are they leaving from the airport?
Mr. Walker:
Yes, they leave from McCarran International Airport, fly down Tropicana Avenue, they see the very edge of the Grand Canyon and fly back.
Senator O’Donnell:
Did you, by your incentives, let Scenic Airlines know you would rather have them off the airport?
Mr. Walker:
We encouraged them to go to the North Las Vegas Airport or to the Henderson Executive Airport.
Senator O’Donnell:
If you move Scenic Airlines off the Strip to North Las Vegas, it takes awhile to drive there and take off in a fixed-wing aircraft to go see the Grand Canyon; however, when you are on the airport and you are in a helicopter, you can leave right away. So, what happened was you moved the entire fixed-wing fleet out to North Las Vegas Airport, putting them farther away from the Strip, yet the helicopters are there at the airport, and they now have the advantage. If they were fixed-wing, they would not be there. The point I am trying to make is, they will continue to want to leave from the airport as long as they have permission to do so and fly to the Grand Canyon. I do not think you are going to stop it.
Mr. Walker:
I suspect you are right; the single largest fixed-wing Grand Canyon carrier, Eagle Aviation, still operates at McCarran International Airport. There is still a significant amount of fixed-wing aircraft going from McCarran International Airport to the Grand Canyon. The helicopters are not the same tour, they barely get to the edge and come back; the fixed-wing aircraft go all the way to the canyon. You will not be seeing an increase in either the helicopters or the fixed-wing aircraft to the Grand Canyon, because the number of flights to the Grand Canyon has been capped by the federal government.
Senator O’Donnell:
I notice quite a few helicopters circling the Strip; are they leaving from the airport or are they leaving from the helipad near Mandalay Bay Resort and Casino?
Mr. Walker:
Both; some from McCarran International Airport and some from the Strip.
Senator O’Donnell:
Is there any way you can carve out a restricted area over the Strip for the helicopters?
Mr. Walker:
No.
Senator Care:
Does your office receive complaints for the broadcast outlets and their helicopters, for traffic reports, and the television stations? I think they keep their helicopters on the roofs of the television stations.
Mr. Walker:
We do not know whom people are complaining about when we get the complaint, so we try to determine who created the noise impact. Most of the citizens who are concerned about this, Grand Canyon tour helicopters, know which ones are which because those all operate in the daytime; they run in packs, three to five helicopters at a time. Yes, occasionally we do get complaints and it turns out to be a broadcast helicopter, or a METRO (Las Vegas Metropolitan Police Department) helicopter, or even a hospital “Flight For Life” helicopter. Usually, when you tell a resident it is a METRO, then they like the helicopter because it means they are chasing the bad guys in their neighborhood. “Flight For Life,” they are not concerned about. The broadcast ones are in the same category as the commercial ones, and people do not want them flying over their homes. We try to distinguish who they are before we do any response.
John P. Sande III, Lobbyist, Las Vegas Helicopters, Incorporated:
I have three problems with the bill from a legal standpoint. Number one is the use of the word “shall,” in section 2. It talks about the abatement of noise attributable to the flight of helicopters, and requires the board of county commissioners must create an ordinance to set up a committee, and they “shall” be appointed. What this does is sets up the State of Nevada as being a coproprietor with Clark County and McCarran International Airport. As a result, if there was litigation about noise affecting the value of their property, the State would then become a defendant in the action, since this bill would create a mandatory committee to address these issues. If they were not addressed to the satisfaction of the land owner, and there was a taking, the State might very well become a defendant.
The second point is we do not believe under federal law you can discriminate among classes of aircraft. The Airport Authority of Washoe County has created a noise-abatement committee which has been very successful in meeting and dealing with the FAA. They have a broad base of members, and recently they came to the conclusion, with the FAA’s approval, if you changed the flight pattern a little bit, as far as taking off, it would not go directly over certain residential areas. The FAA has been working with them on this and it has been a very successful committee. We think Clark County should create such a committee and maybe you could suggest this forcefully to the county.
The final thing is some of the mandatory aspects already brought up, primarily in section 4, regarding the curfew, the flight paths and requiring aircraft to bear identification.
The first one, the flight path or time of operation, was just decided by the United States Supreme Court in 1973 in the case of the City of Burbank v. Lockheed Air Terminal (411 U.S. 624[1973]). The United States Supreme Court says:
The Federal Aviation Act requires a delicate balance between safety and efficiency, 49 U.S.C. 1348 (a), and the protection [411 U.S. 624, 639] of persons on the ground. 49 U.S.C. 1348 (c). Any regulations adopted by the Administrator to control noise pollution must be consistent with the “highest degree of safety.” 49 U.S.C. 1431 (d)(3). The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled.
I should also point out, shortly after the Burbank decision, Congress clarified and codified the Burbank decision. We are not opposed to participating; the helicopter operators would like to participate, but we just believe having mandatory provisions in here, especially when they are contrary to federal law and federal preemption, would not be appropriate. This is the legal analysis.
Senator Neal:
Mr. Sande, when you speak of the delicate balance between health and safety, I assume safety refers to the aircraft and its landing patterns. In order to assure an aircraft is safe, you would not put it into a landing pattern where it might have a steep incline over a mountain in bad weather or where you are going to have wind shears which might press it to the ground when it takes off. Which simply means, without assurance, you cannot do anything about the problem. Is this what I am hearing?
Mr. Sande:
You can, which is what we are suggesting; you can deal with the FAA. The FAA has a responsibility for determining these issues; they should consider the safety of people on the ground as well as the safety of passengers in the air. Which is why there has been so much litigation in this area. I think what we are saying is, we recognize the problem and know it is frustrating, the only thing with a chance of working is setting up some type of a voluntary committee where everybody is represented in Clark County and they would deal with the FAA and say, “This is what we would like you to do.” I think Mr. Jenson (Greg Jenson, Attorney at Jones Vargas) can address it better than I.
Greg Jenson, Attorney, Representing Las Vegas Helicopters, Incorporated:
There are five helicopter operators in the Las Vegas Valley; four of them operate out of McCarran International Airport. Mr. Schlesinger’s (Jerry Schlesinger, President, Las Vegas Helicopters, Incorporated) business operates on the Strip. The helicopter noise is something these operators are hearing more about themselves. They are willing to continue their efforts to work with McCarran International Airport. It is an ongoing dialogue, a technical one, but there is enough noise information now, all parties concerned can tighten the routes and adjust to the goal.
Our biggest concern is this bill not only puts the state in a liability position, but without studies or anything, it mandates curfew hours and flight paths, and says you “shall” do those things.
I would suggest we consider something less formal and less structured than “shalls” in areas where there is federal preemption. I would prefer to see there be more of an advisory-type committee. The composition of this one strikes me as very one-sided. I think neighborhoods must be represented. I do not see the necessity for a formal bill; it discriminates against types of aircrafts, and it puts the state in a position of mandating. I think it may be overkill in a business area which can be dealt with at the airport for these five operators or tenants of McCarran International Airport. We urge you to take a softer approach which would not get the state into a liability position.
Senator Neal:
Are you suggesting you cannot discriminate in terms of noise if there is an overriding health issue?
Mr. Jenson:
If there had been findings of health issues, then I think it would depend on what the finding is. They may have to discriminate on the basis of a proven health concern.
Senator Titus:
Is there an agreement between the helicopter companies and the Strip hotels as opposed to something negotiated by the county?
Mr. Jenson:
There is no agreement; they fly regularly along the industrial area and the “Spaghetti Bowl” (the Interstate I5 – U.S. Highway 95 interchange) and back along the Strip, particularly at night. There may be a situation where one or more hotels have called saying, “Would you please alter going over my hotel.” I think there have been informal discussions about it and people have been responsive, but there is no overall agreement. Mr. Schlesinger can speak to it.
Jerry Schlesinger, President, Las Vegas Helicopters, Incorporated:
If there was any agreement, it was arrived on for a safety issue because if you fly over the middle of the Strip and there is an emergency, it would be catastrophic to have anything happen to any of the hotels. So, we operate to one side or the other of the Strip to accommodate the safety issues.
Senator Titus:
Who set this up? Who said “do not fly over the middle of the Strip?” Was it something the county negotiated or did you just volunteer?
Mr. Schlesinger:
Yes, we all volunteered and it was in accord with the FAA.
Senator Titus:
Was there a meeting?
Mr. Schlesinger:
Yes.
Senator Titus:
Who was at the meeting?
Mr. Schlesinger:
The five helicopter operators and the FAA.
Senator Titus:
No one from the hotels or from the county?
Mr. Schlesinger:
If there was, I do not recall.
Bob McCune, Nevada Commercial Aviation Council for Tourism:
I am here to speak in opposition to A.B. 490. I am not here to speak in opposition to noise abatement. I represent the five helicopter operators in Clark County who are affiliated under the name of Nevada Commercial Aviation Council for Tourism. I was sent a copy of a letter from the FAA by the chief counsel for the western region, advising your counter group in the Assembly in response to the proposed draft of the bill. The letter was written for informational purposes as the proposed legislation set forth in A. B. 490 may, if enacted, violate the principle in which the federal government has preempted air traffic and air space management.
Last year Congress dictated an extensive study be done on the reduction of the effects of non-military helicopter noise in densely populated areas of the continental United States. This in-depth study, with involvement by acknowledged noise-abatement scientists from academia, the top sound and acoustic laboratories, and government science centers, was committed to by the FAA and is still being finished up. It will be provided to the United States House of Representatives shortly. At which time the House of Representatives Committee on Transportation and Infrastructure subcommittee on aviation will look at the study in the context of what the recommended solutions are for reduction of the effects of non-military helicopter noise. Congress then intends to consider the findings of this study in their consideration of pending noise legislation later this year.
At the Clark County level, a group of top people has been in place for a long time, from the department of aviation at McCarran International Airport, top officials from the FAA’s Flight Safety District Office (FSDO), air traffic control, and the FAA’s Western Pacific Region for the local FAA responsible for ground safety, air traffic control, and air space management. Also, participating in these work groups are corporate executive officer (CEO) representatives from the companies of the five helicopter operators in Las Vegas. Their goal is to find the best departure and return routes from Las Vegas for Grand Canyon and Strip tours while mitigating air space noise, and without compromising flight and ground safety.
Mr. McCune:
At present, both the FAA and the air tour helicopter pilots are flight-testing alternative routes which could improve the noise problem. I would like to show you the alternative routes being tested. This is the list for the work agenda (Exhibit M), and the types of things they are trying to do constructively to improve this situation, because we hope to come back. We will be meeting again every 2 weeks until we feel like we have made some gains on this. I think there is a good-faith effort being conducted by the professionals. We did not have the advantage of learning of this concern until we attended a couple of citizen meetings a few weeks ago. It bothers us to hear this has been going on for 2 to 3 years. We were never called in to work together until now. We are very optimistic what we are doing is going to bring some improvements.
([Exhibit N] “Las Vegas Area Helicopter Routes Description,” was passed out to the committee for their review.)
Mr. McCune:
The other thing is, all five-helicopter companies are currently talking with manufacturers of new quiet helicopter technology, which is presently being incorporated into the new flight models. One operator has signed a purchase contract with Eurocopter to purchase their new ultra quiet EC130B4 helicopter which is the best available. Quiet technology has not always been available for helicopters because of the aerodynamics of the process.
We are trying to do what is right, what is legal, and what we believe can be done. We believe A.B. 490 is a little bit too little, too late, and is going to be outdistanced by the ongoing event. Helicopter operators do want to be good citizens; a couple years back, we were cited for our hard work in the tourism industry by the Nevada Senate of which we are still very proud.
Two things I would like to close on, one, it has nothing to do with noise abatement, but if you look at our flight record for 12, 14 years, the flight safety of those operations have been very good. We do not make noise ourselves; it is just a byproduct of what we do. We are important to our community and we want to be good business people. There are 7.9 million people who manage to squeeze in trips to Hoover Dam, Lake Mead, and the Grand Canyon because of air accessibility. It is almost 20 percent of the total visitors; we are making our community better-off for our efforts. A lot of tax revenue comes from those satisfied tourists who have the opportunity, on a short visit, to see some of the world’s marvels by taking a helicopter tour.
Senator Porter:
Has there been an overture by the county or by McCarran International Airport to find an alternate site acceptable to the industry which may relieve some of the problems in this area?
Mr. Schlesinger:
I think we are completely open to discussion of either alternative sites, or alternative routes. We, as members of the community who live, work, and play, and our children go to school in this community, realize there is an issue and a concern. I think we are responsible enough businessmen to respond to the community and take care of the issues among ourselves. We are considering alternative sites, alternative routes, and alternative aircraft.
Mr. McCune:
We are also facing the gasoline price crunch, when you start talking about moving locations for the operators, it increases the tour and the amount of consumed fuel for each helicopter. We do not have much land left in this valley; we are willing to be good citizens, but it is a combination. People do not know how sensitive a helicopter flight is. If you have ever taken one, all passengers have to be weighed, which has to be assessed in terms of the fuel consumption. The FAA requires us to have so much in reserve so in case of a return, we can go to an alternate situation. It is a scientific process.
The FAA is with us on this and we are with them. We feel like we are going to make some progress. There is no 100 percent solution; there is a little compromise needed and we will look at alternatives.
Senator Titus:
I hear you talking about what the FAA can do, and what we cannot do because it is all preempted. I have copies of two letters (Exhibit O and Exhibit P) from Mr. Bill Withycombe, Regional Administrator, FAA (William C. Withycombe, FAA Western-Pacific Regional Administrator), in which some suggestions are made. One says, hours of operation are determined by the local governing authorities. Whether or not they base helicopters outside the city, this suggestion needs to be addressed by local officials because the FAA lacks authority to dictate where helicopters will be based. It is true the State of Nevada and the Clark County Department of Aviation do have the opportunity to suggest routes they feel would be beneficial. When suggestions are received, the FAA gives them serious consideration, and when feasible, implements them. Then it goes on to talk about the problem of deviating from the routes and says the biggest problem is obtaining vital identification information from the complainant, which would be the numbers from the bottom of the aircraft. Then it says the curfew of helicopter tour operations and the relocation and prohibition of the base operation of all helicopters may be considered as airport restrictions. Airport operators do have the authority to impose airport restrictions as a means for reducing noise impacts.
Now, how does all this coincide with what you are saying we do not have the authority to do? I do not understand.
Mr. McCune:
I know Mr. Withycombe; I have worked with him in the past. I can only tell you I am working right now with his chief counsel of the Western Pacific Region. He has given me a number of letters which disagree with Mr. Withycombe’s letter from a legal position. I have not seen this letter, Senator Titus, but I would like to follow up and find out, while Mr. Walker is here, if he may have seen the letter, so I will defer to him.
Mr. Walker:
Senator Titus, I have reviewed Mr. Withycombe’s letter, and you will see Mr. Withycombe did not sign it; it is signed by somebody on his behalf. Mr. Withycombe did not write the letter. It was addressed to me. I wrote a letter in response, saying we were surprised we have all this authority, because if we have this authority, we are planning on doing several things which I outlined, including: putting curfews on helicopters, banning 727s and other noisy aircraft, and putting curfews on them. We did get a subsequent letter pointing out we do not have such authority. So, if you would like me to follow up with the subsequent letter, which you do not have in your packet, I would get it for you.
Senator Titus:
He signed this one. I do not see where someone else signed it.
Mr. Walker:
He sent a first letter out, and I sent a second letter. You need to read between the lines when he says for us to suggest routes and they will study them seriously, and where feasible, adjust them. It means nothing. We can suggest routes, which we do all the time. Sometimes they agree, and sometimes they do not. They are still in charge.
We said, if we have this much authority, we plan on doing certain things, because we were not aware we had so much authority. Then we got an assessment letter back which said, well, you do not have quite so much authority, because there are certain types of aircraft operations, if we could, we would regulate them at McCarran International Airport. Helicopters are one of them to a certain degree. Another one would be the 727s which are the nosiest aircraft in the fleet. General aviation aircraft is another; 32 percent of our operations are general aviation aircraft which eat up 50 percent of our air space capacity, which is not a good use of our scarce resource, in our opinion. We have no authority to regulate any of it. Other airports have tried; they have been sued, and they have lost.
We do not make up the rules; we do not make up the laws. We do not necessarily agree with all of them, but we do not have the authority to tell aircraft when they can and cannot operate, unless those restrictions were in effect prior to 1990. We do have some restrictions on our airport but those were all in effect before 1990.
Senator Titus:
Could I get a copy of the subsequent letter?
Mr. Walker:
Absolutely, we will provide it for you.
Senator Neal:
Just listening to these gentlemen talk, we have something like 28 million people who are affected by noise pollution in the country today. When we look at the hypertension, cardiovascular problems, and other associated physiological disorders, it says some action has to be taken relative to this.
One of the things we do know is you have aircraft, helicopters, or whatever circulating over the area where children, the most vulnerable individuals, are affected. Yet, we seem to not want to take it into account when we are looking at these particular problems. We always want to find some voluntary method to act. The children I am speaking of would probably be, 30 to 40 years from now, sitting at the table as you are today. We have to protect them because they are our up-and-coming generation. Certainly we would not like to see a lot of individuals sitting up there with hearing aids trying to hear what everybody has to say.
I think more can be done than just paying lip service to this particular issue. I do not think you understand there are health problems actually associated with noise pollution coming from aircraft.
Mr. Schlesinger:
I also have children who grow up in the community and I am concerned about them as well. Helicopter noise, if you stand next to it, is one thing, and when it flies over for a few split seconds, it is completely different. It is less noise than a lawn mower, a bulldozer, an ambulance, or a truck on the street.
Mr. Jenson:
If you are serious about the health and noise, let us get all the commercial aircraft in here and let us talk about the health problem. We are saying we would like to work with the airport on tightening these routes. Everything done in Washoe County or in Clark County today has worked well on a voluntary basis. But not without some follow-up and enforceability through the FAA. All this needs to be filtered through the federal agency charged with the responsibility for it. We are not trying to suggest we are insensitive to the health issue.
Senator Titus:
If all this noise abatement is regulated through the airport and the FAA, let us forget about that side of it for a minute and go to the business side of it. What kind of license and permits do you have to get before you get to the FAA stage for operating?
Mr. Jenson:
I do not know all of them, but in Clark County you would need a use permit, compatible land use would be determined, and you would perhaps need variances, and a business license. I have never seen the Business License Department regulate the operating hours of the licensed businesses operating on the runways of McCarran International Airport.
Senator Titus:
They do put certain restrictions on other kinds of businesses operations, do they not? It might be certain hours you can operate, or a certain kind of license you can qualify for. Those can be done, right? Perhaps it is the way to look at putting some restrictions on this, before you get to the FAA. As a lawyer, what would be your suggestion on this?
Mr. Jenson:
It may be one way to do it, but I do not see a business license as a way of operating a commercial activity exclusively regulated by a federal agency. Those federal agencies do not regulate the times and days of operation of car dealerships or retail establishments. This is an aviation business regulated extensively at the federal level. I do not think a business license itself could regulate the helicopter operation.
Chairman O’Connell:
Committee, any further questions?
Senator Porter:
In fairness to Mr. Walker, the FAA makes it very difficult for local communities; we have spent hours and years with the FAA in Boulder City. I think we can find some solutions here, but it is very difficult dealing with the federal government.
Chairman O’Connell:
Assemblywoman Giunchigliani, have you been working with these folks on the other side prior to the bill getting over here? Was there any kind of timeline you needed to get the bill over?
Assemblywoman Giunchigliani:
Madam Chairman, I think part of it was the timeline. The subcommittee dealt with amendments at a Las Vegas hearing. I am willing to work with anybody regarding this matter. I think there are some disparities with the FAA; they tend to also give misinformation from time to time depending on whom they talk to. If you do not ask the right question you do not get the right answer, which is part of the problem. Senator Neal’s comments regarding the environmental issue are very important, because 80 decibels is when they determine it is unhealthy. They are correct about the noise study the airport did at the request of the commissioners. If you look at the numbers for the single events, they were in the 70 percent to 80 percent to 85 percent margin. So, there is a problem with it climbing. The federal government does have regulations regarding impoverished zip codes; if noise disproportionately affects areas designated as impoverished zip codes, you can also be sued. I think we have a week or so to work out something without degrading or losing the intent of this legislation.
Senator Porter:
Are the rules different for those operators, whether they are fixed-based operators or whatever the definition is, on a federally funded airport as opposed to a private property adjacent to the airport?
Mr. Walker:
Federally funded airports have much greater restrictions than do private airports. Yes, I would say the rules are different. There is only one privately held property; the one on the Strip. The ones at the airport are subleases to fixed-base operators, which are Eagle Aviation and Signature Flight Support; they lease land from us. In their lease they have permitted uses. We cannot discriminate in our lease against them. We could not have a lease saying you could handle everybody but helicopters and noisy corporate jets for example. Actually, they are the ones providing the facilities. We have never built anything for helicopters at any of our airports, nor do we plan to do so.
Senator Porter:
Can you be more restrictive on privately held property than on the federal?
Mr. Walker:
We, as an airport, cannot restrict privately held property. Once they get into the air, federal aviation regulates them. Whether the county could regulate, through use permits, operations off the airport more restrictively than they could at the airport, we would have to ask our attorneys this question. But I do believe it might be some possible because the laws for public airports regulate public airports and not private airports. So, a private helicopter facility would not have to comply with all the regulatory bodies as we have to do. They did not get federal funds. Most of the lands of our existing runways were received under the 1948 airport and airways act, but if we do not comply with the federal regulation, we have to give it back.
Chairman O’Connell:
Mr. Sande, if you would work with Assemblywoman Giunchigliani and the people involved with this issue, and then bring it back to us when you feel you have a compromise, or if you feel you cannot compromise. We will not vote on this bill until we hear back from all of you on this.
Assemblywoman Giunchigliani:
Thank you, for your patience. I will do so, if I cannot work it out, I will let you know as well. But, hopefully we can.
(The following is a list of exhibits presented to the committee for their future review, but were never discussed: [Exhibit Q] Letter dated April 16, 2001 from Edson O. Parker, Concerned Citizen; [Exhibit R] Letter dated January 16, 2001 from Kristi Saylors, Concerned Citizen; [Exhibit S] Letter dated April 16, 2001 from Elly Brekke, Regional Executive Manager, Federal Aviation Administration Western-Pacific Region, Hawthorne, California; [Exhibit T] Letter dated May 4, 2001 from Assemblyman John Oceguera, Assembly District No. 16; [Exhibit U] Newspaper clipping titled, “Blame Clark County’s aviation department for helicopter noise;” and [Exhibit V] Newspaper clipping titled, “Skies not so friendly along helicopter flight paths.”)
Chairman O’Connell:
We will close the hearing on A.B. 490 and open the hearing on A.B. 462.
ASSEMBLY BILL 462: Authorizes certain local governments to impose tax on nonresidential construction projects or require dedication of certain land for regional parks. (BDR 22-72)
Assemblyman Tom Collins, Clark County Assembly District No.1:
I am here today on A.B. 462 which passed out of the Assembly with no opposition. Last session, the Senate passed a bill dealing with impact fees and construction fees, it died in the Assembly. After we got home from the legislative session I had a meeting near my district with parks people, Las Vegas, North Las Vegas, Henderson, BLM, U.S. Forest Service, Southern Nevada Home Builders, and several other groups. Later, I found out for residential construction tax cycles, permits are not always the same, and the development is not always the same. To level it off for these local governments, this nonresidential construction tax is ideal in its enabling. This does not make anyone pay a penny, it only enables local governments to level off, with some restrictions, park construction costs for nonresidential areas. It has two caps on it, one is at 1 percent and the other cap is $20,000 maximum. This money goes for regional parks. Mr. Musgrove is going to give you some examples in southern Nevada with which some of you may be familiar. But, the opportunity is, it goes to regional parks which are larger than the little neighborhood parks, which complements previous legislation you heard this afternoon. This is beneficial in putting the whole idea on a fair playing field for everybody, versus one developer having to do this big thing because they are in a certain location where some other developer would not have to participate. This is also an evening-out process for growth paying for growth.
Senator Neal:
What is the difference between your bill A.B. 462 and A.B. 458 which also speaks of parks?
ASSEMBLY BILL 458: Authorizes local governments to impose impact fees on new developments to finance fire station projects, park projects and police station projects. (BDR 22-1000)
Assemblyman Collins:
This is for nonresidential construction. For example, the Texas Station Gambling Hall and Hotel, the Fiesta Casino Hotel, the Pep Boys Automotive Super Center, and all those things up and down Rancho Drive which have just come in recent years, could have been kicking in for a regional park out there in some of the available vacant area.
Mr. Musgrove:
Both the City of Las Vegas and Assemblyman Collins had similar bills, our bill was A.B. 654 which essentially did the same thing, through revision and compromise with both residential developers and development folks, we essentially came up with two similar bills.
ASSEMBLY BILL 654: Authorizes governing body of city or county to impose tax on nonresidential structures or require dedication of certain land for regional parks. (BDR 22-477)
Mr. Musgrove:
We chose to put A.B. 654 on the desk and they both passed out of committee; A.B. 654 came out of taxation and A.B. 462 came out of government affairs on the Assembly side. I would like to give you some background as to why the city wanted such a tool in our toolbox. The Southern Nevada Regional Planning Coalition established a regional standard of 2.5 acres of parkland per 1000 residents. Based on this ratio, the city of Las Vegas projects a deficit of about 15,050 acres of parkland over the next 20 years. Currently the only dedicated funding available to communities for parks acquisition and development is the residential construction tax. Now, the residential construction tax funds only a portion of parks development for new growth and does not address existing or future shortfalls. We look at the fact nonresidential construction has a broad impact upon the general welfare of the region.
Every job created by nonresidential development results in an increase of 2.1 persons per job and a need for an additional 109 square feet of park land. So, this is equivalent to a quarter acre of parkland for every 100 jobs created. To mitigate this impact, we feel it is only appropriate to place a construction tax on nonresidential development to help minimize the deficit in funding which we have found in neighborhood and regional parks. Parks and recreation are important components in the support of nonresidential development. Quality of life in an area has proved very important to nonresidential development locating in the area. We feel local governments need the tools to allow growth to pay for growth. The residential construction tax is one portion of growth paying for growth and the jobs and people brought to an area through nonresidential growth should also be required to pay their fair share with a nonresidential construction tax.
When both bills originally came out, we realized some things needed to be amended to address some of the concerns we had when we met with residential folks and the developers.
In section 1, the first thing is the definition of nonresidential construction project, which means, “Anything that is not a residential dwelling unit, apartment house, or mobile home lot.”
The second thing of importance is on page 3, section 5, line 10, this sets up the caps. We felt it was important to set a cap, by statute, so the developers knew the worst-case scenario they could enter into. As Assemblyman Collins stated, this is enabling legislation. We know certain governments in southern Nevada or even statewide may not even use this nonresidential construction tax. But the City of Las Vegas is looking at it very hard along with the impact fees Senator Neal talked about and Irene Porter brought before you today.
It sets up a cap of 1 percent of the valuation of each building permit issued or $20,000 per project. What we are talking about is a rooftop tax. If a huge shopping mall was built on the boulevard, the $20,000 cap would apply when the building permit was issued for the project. Now, if there were some pads out there where they came and pulled individual permits for those projects, those would be looked at either on a 1 percent scale or at a cap of $20,000. The actual rate will be negotiated with the stakeholders on a local level through an ordinance we pass, much like the residential fee is done now.
Mr. Musgrove:
Recently, over the interim period, prior to 1999, it was at $32 per hundred square feet of assessed value. Over the interim, we met with the home builders and we all agreed we should raise it to $36. When we have the public hearings and set the ordinance, we will negotiate the rate under the cap we are setting by statute.
The other thing we wanted to do to satisfy these folks was to make sure the residential construction tax and nonresidential construction tax are kept in two separate funds. The residential construction tax money is used for neighborhood parks under 25 acres. This nonresidential construction tax we intend to use would be set by statute for regional parks larger than 50 acres. We are looking at larger, urban parks which would flow well into commercial areas. For example, Betty Wilson Soccer Park off Lake Mead Boulevard and Tanaya Way is only 20 to 30 acres and was set in the middle of a commercial area. The commercial residents and the neighborhoods around would be able to use this park, it has helped the businesses, and it has provided needed green space. All of the soccer moms go to the AM/PM Mini Mart and buy their supplies for the soccer team. It fits well in the commercial area because it has now added some space for the families who live, work, and play in the area. Our intent with this legislation is to try to start generating funds so we can start building these larger regional parks.
The last 50-acre regional park built in the city of Las Vegas was Freedom Park; you know how old this park is. We do not have the general funds to build those larger parks. There is a sunset clause on page 4, line 21. In other words, the money will not sit out there forever. If we have collected money and we do not build something within 10 years after 75 percent of the nonresidential construction projects have been occupied, we would refund the money with interest to those businesses initially impacted. The rest of the bill is cleanup changes. We would really appreciate your consideration in this matter.
Chairman O’Connell:
Ms. Guinasso, why is it on A.B. 462 and on A.B. 458 there is not a two-thirds vote?
Kimberly Marsh Guinasso, Committee Counsel:
Because it is permissive; it is authorizing the local governments to do this but it is not actually doing it. If it were a directive to local governments, or if it were being done by the legislature itself, there would be a two-thirds majority required, but it is merely authorizing the local governments to do this and therefore it is not required.
Chairman O’Connell:
Do you have any idea of the money you would be generating, and if you were to build those parks, is this going to be ongoing, so it would not only be used for the building of the parks but also for the maintenance?
Mr. Musgrove:
I can tell you it would not be used maintenance; it would be used strictly for construction. In terms of the money it would garner, it is hard to figure at this point. The residential construction tax, which is at a much lower rate, only generates about $2 million a year. Based on the commercial projections, we do not think it would be much more; maybe $2 million to $3 million per year. The other thing is, this bill would not be used for tenant improvements. Using the example I used before of The Boulevard (The Boulevard Mall in Las Vegas), once The Boulevard was built and someone came in to build the Dillard’s and the shoe store, they would not be charged construction tax on those tenant improvements within the original roof top structure. The structure itself generates the initial tax, based on the original building permit and the valuation at such a level.
Chairman O’Connell:
Committee, any questions? Is there anyone else in support of A.B. 462?
Ms. Shipman:
Regional parks in Washoe County are already in an unincorporated area and it would not be appropriate to adopt a tax which would only be imposed on the unincorporated areas. Unless it was done on a regional basis, it would probably not be considered by our commission, but we feel the concept is proper.
Karen Mullen, Director, Parks and Recreation, Washoe County:
Washoe County parks’ primary mission is a regional park. We believe our regional park system has a positive economic impact on the community. These regional parks provide a wide variety of special-use facilities from campgrounds, horse arena facilities, large performing arts venues, and marinas, to programmed events. A premier event facility is Rancho San Rafael Regional Park which is host to numerous special events, well over 100,000 people attend balloon races annually. We believe this has great economic impact to our community. The park was the original host site for the Hot August Nights event; this event has grown to such a size, there are now many venues throughout the community. We host a lot of smaller events, like the recent 8000 participants to the national junior cross country Olympics program where we had participants from all over the United States. In addition, we host almost all of the large company picnics, ranging from 500 to 5000 participants at each picnic.
Ms. Mullen:
Rancho San Rafael Regional Park, Bartley Ranch Park, and Bowers Mansion Park, are the only facilities which can handle the large numbers. Washoe County parks believe the regional parks are good business for our community and we believe this would provide us an alternate funding source for those regional parks. Right now, our only funding source is through voter-approved bonds. We have been very lucky and successful in this area, but this would give a secure funding source for some facilities within these regional parks.
Senator Raggio:
The bill would limit the funding for the purpose of acquisition, improvement, and expansion, for installation of the facilities. The chairman had asked whether it would apply to maintenance; do you understand?
Ms. Mullen:
Correct, we understand. It is also true with the residential park construction tax. We have not been able to continue to build out the master plan for Rancho San Rafael Regional Park, because we are limited in our funding sources. This would help us to complete our master plan program for Rancho San Rafael.
Steve Kastens, Director, Parks and Recreation, Carson City:
We are in support of this pending legislation, and have a couple of comments which might be of interest to the committee. Most of the communities collecting a residential construction tax, or would collect this nonresidential construction tax, have a public hearing process by which we expend those funds. During those processes we always find out we have a lot more requests than we have money to provide for. So, any means of obtaining some additional funding would be greatly appreciated.
Also, regional facilities serve a different type of clientele than most areas do. A lot of the regional facilities mentioned earlier are constructed in business areas or commercial areas. With the trend of people becoming healthier, we are seeing a lot more people getting out on their morning breaks and taking walks. We see a lot more people getting out on their lunch breaks and taking walks or picnicking in these regional areas. The funding to help support the improvements people require or request in order to do these activities during their break times, would come from the properties generating the presence of these people; the office workers, factory workers or whoever is there. This is one source we have not been able to tap in the past, but the demands have been there from those particular entities. So, we would support this bill.
Chairman O’Connell:
OK, questions committee?
Senator Care:
If there is such a strong nexus, why should there be a cap? Why would a $4 million project not have twice as much of a nexus than a $2 million project?
Ms. Shipman:
Technically, there should not be a cap. In real life and the real world, we would not have a cap. Since the constitutional minimal requirement is to have a rough proportionality to the benefit being received, obviously, all of those issues would have to be dealt with. By making a cap, it does convert it from an impact fee to a tax; in my mind, it actually makes it more vulnerable because under case law, taxes can be used in a much wider variety of ways than impact fees. Impact fees are very limited in capital construction. We would love to see the cap taken off, but I think this was the way the bill came over here, I think we will be extremely lucky if this bill were to come out.
Senator Raggio:
To Senator Care, this whole concept has been the subject of long discussion over many sessions. If you will notice in the same section, there is a similar cap on the residential construction tax. What was happening, they were collecting a lot of money and not using it. The idea was, it should not just be collected and allowed to sit there, and it should be used within a certain period of time, so a cap was put in.
Chairman O’Connell:
Anyone else in favor of A.B. 462?
Ms. Walker:
I am in favor.
Chairman O’Connell:
Any opposition to A.B. 462?
Jeanette K. Belz, Lobbyist, Associated General Contractors, Northern Nevada:
There are a few sections of this bill (A.B. 462) which I think might benefit from some clarification. One is on page 3, section 5, subsection 2, paragraph (c), lines 10 through 16. As Mr. Musgrove mentioned, there is a cap of $20,000, but the cap is limited per project. Mr. Musgrove indicated in a conversation we had earlier, his intent was it would be per building permit.
Chairman O’Connell:
I noticed Mr. Musgrove said, “Under the roof,” which would indicate it was not, if it were a strip center, per unit under the roof, but I did not think it was very clear either.
Ms. Belz:
I would like to come back to that section, but it also relates to subsection 9, on page 4, where the 75 percent of the occupancy would be relating to the project. If you have something like an industrial park, would it be considered a project? Would an individual building be considered a project, so you would need to have 75 percent occupancy of a four-floor structure?
If I might go back to subsection 2, paragraph (c), page 3, lines 10 through 16, it might be more clear if in the last line of 16, it would say, “the actual cost of nonresidential construction projects in the regional park district” as opposed to, “in the area,” which is a generic term. I talked to Ms. Porter about this earlier, and the residential construction bill also says, “in the area.” I know they model one after the other, but it might be more clear if it actually related to what it was supposed to be funding, so, it would relate back to the regional park district.
I understand this is enabling, but just as a general comment, commercial construction is a very competitive business and the more fees and taxes we add on, the more difficult it becomes to attract folks to come here to build.
Chairman O’Connell:
Would you please submit to our office the language you think would correct those two areas?
Ms. Belz:
I would be more than happy to do so.
Senator Neal:
Question, Madam Chairman. As to competitiveness, it is competitive to everybody, right? You would not knock the fee off just because somebody else came in to apply from out of state. Anybody who wants to come in and build would have to abide by the same process, would they not?
Ms. Belz:
In nonresidential construction, yes.
Senator O’Donnell:
I think what she meant was competitive in terms of having the builders go somewhere else in the country to build, not necessarily they would be competing against one another.
Ms. Belz:
If I might add, builders could also go to another area within Nevada where they do not impose the tax, or they could go to Boise, Idaho.
Terry K. Graves, Lobbyist, Basic Management Incorporated:
The concerns about this bill have mostly been touched on by previous speakers, but in general, we oppose the bill. During a time when revenue shortfalls are an issue and when business slowdowns and economy slowdowns are occurring in the state, does it seem prudent to implement another tax?
More specifically to issues within the bill, there is a nexus problem. Should residential users of parks be funded by third parties such as commercial developments? Mr. Musgrove and others have made the nexus between commercial development and the use of parks. I would not necessarily oppose the argument, but if you do accept it, then Senator Care’s point about whether there should be a cap is very important. Perhaps it makes more sense to have a multiplier, instead of 1 percent, a tenth of a percent with no cap. I do not know what the number should be; it is up to others to figure out the multiplier. If you think some sort of impact fee ought to go forth, then I would submit it should have a different formula than this 1 percent with a $20,000 cap.
One of the reasons I believe this is because in a competition between developers, this becomes very discriminatory between large builders and small builders. A hotel project for $300 million to $400 million would pay the same fee as some developer putting up a $2 million strip shopping center. This goes to Ms. Shipman’s point regarding a discriminatory fee.
Chairman O’Connell:
Any questions?
Senator Care:
We had the discussion on the first bill this morning, which went to neighborhood parks less than 50 acres. Now, let us take a 51-acre park. With the difference between the 49-acre park and the 51-acre park, who should pay for the original park?
Mr. Graves:
I am probably not the person to answer, but I did raise the same issue in my comments, “How are these funds really going to be distributed?” That is a question from my client. For instance, one of the questions was, Is this funding to go to the benefit of the neighborhood in which it was raised? In Las Vegas for example, where most of the development is occurring and there are planned communities with a lot of park facilities already in the plan, on the east side of Las Vegas, where they need regional parks, there is very little commercial development going on; so how do you rationalize disbursement of funding? It is a fair question and an issue which should be cleared up in this bill.
Chairman O’Connell:
Assemblyman Collins, do you have any comments you would like to make on the question just asked?
Assemblyman Collins:
I think a prime example is Nellis Boulevard, where there has been a tremendous amount of development in the last few years. This would have definitely benefited that side of town, which has not had as much residential growth as the west side of town, but has had a tremendous amount of commercial development which could have contributed to a regional park somewhere in the area.
Chairman O’Connell:
Do you have any problems with any of the suggestions currently made to amend the bill?
Assemblyman Collins:
I think there was a question from the Associated General Contractors (AGC) for clarification. Let us address the caps.
Senator Porter:
The community of Henderson passed a bond issue for the construction of parks, and I think we would all say they have a great park system in the community of Henderson. My understanding is the City of Las Vegas has had similar bond issues in the past and those have failed. The community chose not to vote for a bond. It seems to me the Henderson community decided to step up to the plate and push for a bond issue, and it was accepted. Now, we are trying to put fees on commercial developments because the community chose not to pass a bond issue.
Mr. Collins:
In 1994, Clark County had a bond issue for parks which failed. Henderson just recently failed on a police and fire bond. Henderson has stepped up to the plate in requiring their developers to do more up-front development, including parks, than other cities have done. Also, on the same point, Henderson’s requirement for more up-front development is partly why A.B. 468 has gained in favor, including from the home builders, because developer A puts up $1 million as a condition to do his development, and developer B puts up $40,000 for a like-unit development.
Senator Porter:
Henderson made a decision on their parks and they chose to bond. Would this not be unfair to a facility in Henderson?
Assemblyman Collins:
I do not believe so, because Henderson does not have to go this route. This is enabling legislation which Henderson does not have to choose to do.
On the clarification of the caps and the 49- versus 51-acre issue, a lot of commercial development would have been enabling to take care of it on Nellis Boulevard. The whole point of development cycles is to create residential peaks and valleys, and the commercial development fills in the low spots. When you build a lot of homes, commercial development comes in behind to fill in and level off with regional park money versus residential park money.
The little neighborhood park gets built by the individual few residential developments, the larger park will come when the commercial development comes. The 10 years and the 75 percent means, the clock does not tick until there is 75 percent occupancy on the commercial project. This is when their fees for 10 years start the clock turning for their refund.
The other question on enabling is similar to residential construction and I do not see an issue there. Was there another question?
Chairman O’Connell:
No, I just wondered how you felt about the suggested amendments.
Assemblyman Collins:
I did not hear a clear request for an amendment; I only heard clarification questions.
Chairman O’Connell:
Well, they felt it should be clarified as far as the project goes and the language, “in the area.” It is not clear whether you are talking about construction under one roof.
Assemblyman Collins:
Each shop inside a strip center would not pay off of their permit; there would be only one permit on the entire structure. Would you like it written more clearly?
Chairman O’Connell:
We do not feel it is as clear as it needs to be. Also, it should indicate it is within the immediate area.
Assemblyman Collins:
We can address it.
Senator Raggio:
Are these defined districts?
Assemblyman Collins:
It would be on each community’s general plan or master plan to appoint where they have identified a viable location for a regional park.
Senator Raggio:
Regional parks are spread in certain areas and I can envision a situation where maybe only one regional park would get the benefit of this kind of a bill. If you have a specific area for some regional park as somebody suggested here, you are really not helping some of the regional parks which would need the help.
Assemblyman Collins:
We are asking to enable our local governments to level off their revenue source for parks, so they can have a balance between their neighborhood and regional parks. Further, in the 10-year window they have for accumulating this money, if they see problems they can come back here and say, “We have changed how we described regional districts, therefore, we would like to change the formula of this legislation.” I am sure it is not perfect as it is now, but it is pretty close. I agree with the amending of some clarification on the roof-top issue. But I would like to keep the cap, for example, the residential tax caps at $1000, I think the average collection is around $700 to $750 on a residential unit now. A residential which has been around a while is not capped. I do not see the commercial capping being an issue either.
As far as competition, I am a contractor, I understand the competition clause, whether it is prevailing wage, or the permit licensing for a local entity, or the cost of fuel, or the mileage to the job, those are factors everybody figures into the same. We know our costs are all going to be absorbed the same way on certain issues, and we would know up-front what those costs are. This is better than going in to build a project and having a local government come back and say, “Oh, by the way, in order to do this, we want you to do this project over here,” so, this is equalizing out the extraction/extortion issue.
Chairman O’Connell:
Mr. Graves, do you have anything more to add?
Mr. Graves:
One other point I am not sure I made. All this funding goes toward developing a park, nothing goes to maintenance. I think there has to be a concern about an influx of capital, and you may be building a Cadillac and find out you can only maintain a Chevrolet, this is another issue various jurisdictions have to be aware of and sensitive to.
Assemblyman Collins:
I think we should trust local government to decide whether they want a Chevrolet or a Ford. It is their choice.
Chairman O’Connell:
Is there anyone else on A.B. 462? OK, we will close the hearing on A.B. 462 and open the hearing on A.B. 553.
ASSEMBLY BILL 553: Revises provisions regarding notification of certain proposed planning and zoning changes. (BDR 22-197)
Assemblyman Douglas (Doug) A. Bache, Clark County Assembly District No. 11:
During the interim I met with people in planning from Clark County, and the City of Las Vegas, to try and redo how we do notices to people when there is a change in their property. I was looking at some of the simple changes to a person’s property which require notice within a 300-foot radius, and far more complex things also require notice within the 300 feet.
What this bill is attempting to do is match the notice with the level of significance of the project. The key section of the bill is on page 7, section 3, subsection 4, paragraph (a). If the applicant is seeking a deviation of less than 10 percent, this is a small change to a particular property. If a change is at least 10 percent, but not more than 30 percent, you only have to send a notice out to each tenant within a 100-foot radius of the property in question.
At the next level, the special use permit for a deviation of more than 30 percent requires a notice be sent to each tenant within a 500-foot radius of the property in question. The phrase used throughout the bill, “thirty separately owned parcels nearest the property in question,” applies to a more rural area where there are less than 30 separately owned parcels within the 500-foot radius.
Subsection 4, paragraph (d) of section 3 says, “If the application is for a change in zoning or a project of regional significance,” a notice would be required to be sent to tenants within a 750-foot circle around the property in question. Paragraph (e) says, “Any advisory board which has been established for the affected area by the governing body.”
Section 3, subsection 6, deals with establishments serving alcoholic beverages, increasing their notice area up to within 1500 feet of the property in question, because this is an area of great concern.
Senator Raggio:
Subsection 6 applies only to Clark County, regarding alcoholic beverages. What is the present requirement? Fifteen hundred feet is almost one-third of a mile.
Mario Bermudez, Assistant Planning Manager, Comprehensive Planning, Clark County:
Current requirement for notification would be 300 feet.
Senator Raggio:
So, this would extend it from 300 feet to 1500 feet?
Mr. Bermudez:
Correct.
Senator Raggio:
Is there some compelling reason for it to be so far?
Mr. Bermudez:
Even within 300 feet, sometimes these applications can be fairly controversial.
Senator Raggio:
I would think it could be, I just wondered why 1500 feet?
Mr. Bermudez:
It adds additional public notice and gives more people the chance to comment on the application.
Chairman O’Connell:
On Warm Springs, by Green Valley High School, there is a bar which is close and adjacent to the high school, and I have always wondered how they got it so close to the high school. I would say it is within throwing distance of the high school. I was told the property was owned and designated for a bar prior to construction of the high school building. So I like the 1500-foot language.
Stephanie Garcia, Lobbyist, City of Henderson:
I know which bar you are talking about. The property owners did receive a use permit to operate the bar at this location prior to construction of the high school. It is probably about 20 feet away from the property line.
Assemblyman Bache:
After the 1500 feet, in section 4, subsection 1, currently the language says, “The governing body may adopt an ordinance that authorizes the director of planning or another person or agency to grant a deviation of less than 10 percent.” Somebody who wants to change their block wall from 6 feet to 8 feet can have it done this way and it better defines the criteria as to what a minor deviation is. Section 5 discusses a government patent easement.
We also have the gaming establishments outlined in there; currently it is at 2500 feet for notice on a gaming establishment, adding in the phrase, “Thirty separately owned parcels,” if there are less than 30 within 2500 feet.
Chairman O’Connell:
Is there anything you would like to add?
Mr. Bermudez:
We support this amendment, mostly, the government patent easements are just easements which have been designated for road purposes. The roads have not been built and are rarely opposed. When there are questions, typically, property owners believe the road is being vacated, not understanding there is not a road, it is just an underlying easement being vacated.
Chairman O’Connell:
Questions, committee? Anyone else on A.B. 553? OK, we will close the hearing on A.B. 553 and open the hearing on A.B. 63.
ASSEMBLY BILL 63: Revises provisions governing maintenance of certain improvements in subdivisions and planned unit developments. (BDR 22-994)
Ms. Porter:
In 1997, the Legislature adopted a law allowing landscape maintenance districts. The landscape maintenance districts were to be utilized as an alternative to homeowner associations when a homeowners association was not necessary for a project. This occurs when you have a subdivision; the local government requires a 6- or 10-foot landscaped-strip along the front of a subdivision, or even the entry way, or median, trails, and security walls, which are all part of the beautification of the general streetscape.
Instead of forming a homeowners association to maintain the perimeter landscape and the other features actually on the outside of the exterior of the subdivision, you can petition the local government to form a landscape maintenance district. The governing body of the landscape maintenance district would actually go out and hire landscapers and the bill would be sent to each of the property owners in the subdivision for the maintenance. This way the maintenance district is there and there is no need for a homeowners association.
The City of Reno has used this, and they are having luck with it. The reason this came about is we had no process or ordinances, and we had no way to petition the local government. We decided to bring a bill to make it mandatory, but this created opposition, so instead, what we have in here is the governing body shall establish, by ordinance, a procedure to which we may be able to submit a petition and have the petition for the landscape maintenance district rise or fall on its own merits in front of the governing body.
Ms. Porter:
The first two and a half pages of the bill, the bill drafter is putting in the words “without limitation;” we are changing anything reading, “but is not limited to”, or “limited therein” to, “without limitation.” Page 3, section 2, takes the landscaping description and adds some verbiage to it. The landscaping is now defined to be “trees, shrubs, grass, and other ornamentation, whether or not natural or artificial, located on the perimeter of a development of subdivision, on a median strip, or on the perimeter of a development of subdivision.”
The term includes “drainage necessary for the maintenance of the landscaping.” It redefines landscaping to make it clearer. In the next section, they add, “landscaping, public lighting, security walls, and trails, parks and open space which provides a substantial public benefit or which are required by the governing body for the primary use of the public.” These would not be private facilities, they would be for the public.
It then goes into the local government being required to set up an ordinance and a procedure to allow them to submit the petition so the governing body can act on it.
At the bottom of page 5, they get into another issue which has been occurring and is being handled in this bill. I mentioned local governments have now been asking them to set aside or have a trail along the property which may connect into a regional trail system. The trail is for the general public and it is part of the master plan of trails. However, what has been occurring, the local governments are having them keep it with the development and the home owners within the subdivision end up owning the trail and also end up with the liability. If members of the public use the trail while riding a horse, and fall off the horse, the home owners in the subdivision get sued. They have to put insurance on it. There are single individual home owners who have been impacted by this and have found this trail is still a piece of their property and therefore, they have to go get liability insurance. On the other side, because it is in private ownership, someone can go out and fence off the trail at any time, and then there is a large hole in the trail system. About the first time someone pays an insurance claim, it is probably exactly what will happen; everyone will start fencing off pieces of the trail.
We have come up with an agreement, if the trail was part of the trail system or required as a condition of the development, the local government must accept dedication of the trail. Now the local government has the liability.
In subsection 5, “If the governing body requires an owner of land to dedicate a tract of land as a trail identified in the recreation plan of the governing body adopted pursuant to paragraph (j) of subsection 1 of NRS 278.160, the governing body shall accept ownership of the tract; and (b) Assume the maintenance of the tract and any other improvement located on the land that is authorized in subsection 1.” We have allowed the continuation of what occurred in the original law with some clean up on the language so an existing homeowners association could vote to dissolve their homeowners association and petition to go into a landscape maintenance. It could apply to an existing development which meets the criteria of this law.
Chairman O’Connell:
Is there a percentage of the homeowners of an association who need to vote in order to dissolve the association?
Ms. Porter:
It appears the entire homeowners association would have to agree to dissolve it. The owners of the affected tracts of land or residential units agree to dissolve the association for their common-interest community in accordance with the governing documents of the common-interest community upon approval by the governing body of a petition.
If their codes, covenants and regulations (CC&Rs) say they can dissolve with a 60 percent vote, then they could, or a 51 percent vote, or 100 percent vote. It would depend on the CC&Rs of the homeowners association.
Chairman O’Connell:
Is there anyone else to testify on A.B. 63?
Senator Care:
Section 3, subsection 2 language, “A governing body shall establish by ordinance a procedure pursuant to. . .” refers to the petition and some of this language already exists. The petition “must be signed by a majority of the owners whose property will be assessed.” What happens if the majority of the owners of all of the property sign the petition, but they do not own the majority of the property falling under this? It becomes complex when you are talking about units. On page 5, line 15, does it mean residential units to be built as opposed to existing? You can have a row of 10 owners of real property and across the street have undeveloped land, and you might own 60 percent of all the land we are talking about but be only 1 of 11 owners of the real property when you get into the petitioning process.
Ms. Porter:
Senator Care, this is envisioned to be at the time we are doing the subdivision map. By the time the final map is recorded, in order to provide the maintenance, one of two things must be in place. You need to have a homeowners association in place when you record your final map before you start selling or you have the landscape maintenance district in place. This is for new development; it is not until page 6 where we talk about existing residents governed by their CC&Rs and this section.
Chairman O’Connell:
Other questions?
Ms. Shipman:
I support this, having been part of it since 1997. I wanted to be able to answer a question, it is complicated, and this is a work in progress. Reno undertook to actually do these, they now have seven districts. It is not just a take bill, it provides an alternative. The whole concept on the dissolution, originally, when the bill was drafted in 1997, we put in the agreements between the owners of tracts because there were provisions being put into some CC&Rs to allow for the transfer into a landscape district if the legislation ever became enacted. There is one development in the unincorporated area of the county where they are maintaining a landscape strip along Mount Rose Highway and also a small park. It was something the developer had wanted to do; the developer had not been required to create a community park, but he had chosen to dedicate a portion of it. The homeowners association is having a difficult time maintaining all of this and having the interest because it is such a small group. Most homeowner associations have large numbers of structures and facilities; tennis courts, golf clubs, and all of those things to maintain. While they may or may not choose to dissolve, I wanted to provide an option for it to occur.
Another section addressed a homeowners association which failed to maintain these improvements. The government could go in through a complex process, and actually make these improvements so the homeowners associations could not just fade away and have all of the exterior landscaping go bad.
Chairman O’Connell:
Anybody in opposition to A.B. 63? OK, we will close the hearing on A.B. 63 and open the hearing on A.B. 163.
ASSEMBLY BILL 163: Makes various changes relating to regional planning in certain counties. (BDR 22-105)
David Ziegler, Principal Research Analyst, Research Division, Legislative Counsel Bureau:
I am not advocating for or against this measure but I am simply here to provide information and help answer any questions you may have. The genesis of A.B. 163 was simply to clear up some questions of authority which had come up in the routine business of the regional planning program in Washoe County. Some questions were, what was the authority of the regional planning governing board and the regional planning commission to enter into local agreements and to appoint subcommittees and advisory committees.
Page 1, section 1, explicitly provides the governing board may enter into a cooperative agreement, or a joint powers agreement, or an interlocal contract; those are the different citations.
On page 2, section 2, the governing board and the regional planning commission may, jointly or separately, appoint subcommittees for any purpose consistent with their mandate. Further down the page, subsection 3, the governing board and the regional planning commission may, jointly or separately, appoint advisory committees to examine issues which affect the county. It is my understanding the planning commission and the governing board had wanted to do some of these things, but it was not completely clear if they had the authority. So, the purpose of this is to clear it up.
Emily Braswell, Lobbyist, Director, Truckee Meadows Regional Planning Agency:
We are in support of this bill.
Senator Care:
I know the purpose is to clarify, but, are either of you aware of any litigation, or threatened litigation challenging the validity of any existing agreements in the absence of the bill intended to clarify what is an ongoing practice?
Ms. Braswell:
There is no litigation; the problem arose when the planning commission and the governing board jointly appointed a steering committee to oversee the update. The district attorney’s office raised a question as to whether they had such ability.
Chairman O’Connell:
Any other questions? I close the hearing on A.B. 163 and open the hearing on A.B. 179.
ASSEMBLY BILL 179: Revises provisions governing annexation of territory by certain incorporated cities. (BDR 21-475)
Janelle L. Kraft, Lobbyist, City of Las Vegas:
Assembly Bill 179 expands the criteria by which cities in Clark County, only, are allowed to annex lands adjacent to their boundaries. It provides for more orderly and efficient development by allowing the annexation of undeveloped lands surrounded by city property by 75 percent. Page 3, section 2, line 7 outlines this language. We have a huge amount of county islands in the northwest area of Las Vegas. Those areas are governed by Clark County zoning and land use decisions; yet, they have come to the City of Las Vegas for services. Within those county islands, a number of properties have agreed to be annexed in return for connecting to sewer. We cannot reach them because they have undeveloped lands which keep them from being contiguous at this point. Yet, they are receiving the benefits of city services without having to pay city taxes.
Currently, the City of Las Vegas is the only entity providing sewer service and fire protection to the northwest. The county recently conducted a study as to what the cost would be to provide sewer to these areas. It was determined it would be in excess of $100 million just for the construction alone. Our residents recently approved a tax override to fund the construction, staffing, and equipment of four new fire stations in the northwest portion of the valley.
These areas are reluctant to be annexed because we have a higher tax rate. We have estimated the additional cost to them would be $17.50 per $10,000 of actual value per year, so it is not a great deal of difference to them.
We also feel the infrastructure we are providing to these areas is increasing the value of their undeveloped property and making it more suitable for development. They are benefiting from what we are doing in the area. We do not expect this bill to address all of the problems we are experiencing in the northwest, but we feel, by passing this legislation, it would prevent more occurrences of these land-use decisions the residents feel are incompatible with their surrounding areas.
We would like to give them a voice in the decisions we are making which affect them. For the ineligible areas, we will continue to work with Clark County to address those and come up with a seamless planning agreement to take care of those areas.
Chairman O’Connell:
Do you have any idea of how many home owners we are talking about?
Ms. Kraft:
There would be no homes involved, only property owners because it is only undeveloped land. We would not be annexing any developed areas.
Chairman O’Connell:
Committee, any questions?
Senator Care:
The language, “if the governing body provides or will provide, within a reasonable period,” seems to me somewhat vague. What precisely does it mean?
Ms. Kraft:
Actually, the services are already in the area. It is just a matter of having them accessed. We think possibly there are some BLM lands we do not have sewer lines going to, but obviously, before a development was approved for the area the infrastructure would need to be there.
Senator Neal:
What difficulties does the city foresee in going toward this method in terms of annexation? You are talking about various parcels here. I would assume you would do it all in one ordinance.
Ms. Kraft:
Not necessarily, Senator Neal, we would take them in parcels as they become eligible.
Senator Neal:
What would be the eligibility of vacant lands to be annexed?
Ms. Kraft:
They would have to be surrounded 75 percent by a city boundary in order to become eligible.
Senator Neal:
So, the figures you have showed us of the total vacant land is not correct, which is, 47 percent would not be the total amount you would annex. Correct?
Chris Knight, Manager, Planning Department, Comprehensive Planning Division, City of Las Vegas:
Correct, Senator Neal.
Senator Neal:
So, how much would be available for annexation?
Mr. Knight:
At this point it would be difficult to tell on a detailed basis. What we have tried to depict here is the amount of vacant land within the county islands. If you would look on your map (Exhibit W), there is a large piece of vacant land in the northeast corner of the largest county island. It is made up of two separate parcels. Under this criteria of having 75 percent of the aggregate boundaries, neither one of those parcels currently would qualify. It is a very stringent criteria, it is not going to apply to everything.
Senator Neal:
As you annex, would other parcels become available for annexation by utilizing the particular criteria?
Mr. Knight:
Correct. The purpose of this proposed amendment to the law is to allow the city to annex, which begins to open up other areas. Currently, where we are sitting with the city under the one-eighth rule, there may be one or two more annexations and then the city will not be eligible to annex any more.
Senator Neal:
What in the law prevents you from annexing these parcels now?
Mr. Knight:
There is a black-ball kind of provision in there, if you do not have 51 percent of the property owners petitioning and agreeing to the annexation, you cannot annex the property. What this says is if there is 75 percent aggregate, you can annex vacant land. We do not want to be annexing land upon which someone has built their house, the single largest investment of their life with their own personal finances, without their permission.
Senator Neal:
Does it remove the ownership requirement if you get their permission for the vacant land?
Mr. Knight:
Yes sir, correct.
Senator Neal:
What justification does the city give for moving in this direction in terms of annexation of these properties?
Ms. Kraft:
Our justification is, we are already providing services to these areas. The residents do not have to pay city taxes to fund those services. We are the only fire protection in the area, and the only sewer service in the area. We have installed roads and parks which all the residents in those areas are using, yet they are putting off annexing because we have a higher tax rate.
Senator Neal:
So, they are receiving certain benefits from the city in which they are not paying for as other residential parts of the city?
Ms. Kraft:
Absolutely. We can have neighboring residents paying totally different tax rates but still enjoying the same services.
Senator Neal:
So, you are not moving against the persons already occupying the land, who are actually living there and have bought a home; it is just those vacant lands where nothing has been done in terms of improvements and the value of the land, I assume, would increase with the services being rented in the area?
Ms. Kraft:
Correct, Senator Neal.
Chairman O’Connell:
Any other questions?
Senator Care:
The rationale for the bill is the city is providing the services so they should be allowed to annex, but the land is undeveloped. Why would you provide services to undeveloped land unless it is benefiting those isolated parcels where people are already living?
Ms. Kraft:
Senator Care, the services are being provided to some areas within the county which are currently developed, but cannot be annexed in because they have not become contiguous yet. The other rationale is, we do anticipate all of these lands eventually will be part of the city of Las Vegas. We are merely accelerating the process with this bill.
Chairman O’Connell:
Is there other testimony for A.B. 179? Any opposition to A.B. 179?
Mr. Rosenquist:
I did testify in opposition to this bill on the Assembly side. It has been amended since then, which lessens its scope of impact, although we still have to testify in opposition to this. There are two ways to annex property. There is a complex way which includes contiguity criteria, and you need 51 percent of the property owners and a bunch of other criteria. Then there is an easy way where if all the property owners petition then the annexation could happen. Both of those procedures involve the voice of the property owners.
The bill being proposed would take the simpler version of annexation law whereby everybody petitions to come in, and it would change it to basically saying, nobody has a voice if you own undeveloped property which is 75 percent adjacent to city boundaries. I believe you have a packet we distributed; there is another map in there (Exhibit X).
A couple things to point out here: one is, since 1996, the way the existing legislation works now, 12,781 acres in the northwest area have been annexed. In addition, one of the other things you will see in your packet is an interlocal agreement we have entered into with the City of Henderson (Exhibit Y). The interlocal agreement defined several things in terms of future territories and future boundaries; it also addressed joint-planning and joint-service issues. Pursuant to the interlocal agreement, Henderson annexed 5416 acres last year. Again, we are to the point here where we are saying our opposition primarily relates to the idea of private property rights. As you have heard, if it is an undeveloped piece of property with 75 percent contiguity, it can be annexed. This seems to raise a question as to why one’s property right is different depending on whether or not you have built on the property; it is still a piece of private property.
Mr. Rosenquist:
In this northwest area, a lot of the land we are dealing with is identified as rural neighborhood preservation area. There are areas which are built, on your map; the yellow areas are all the vacant areas which would be potential for future annexation. All the white areas are developed, so they would not be eligible for annexation in the future unless a property owner petitioned. So, what we are looking at are a lot of these white areas which are developed out in rural areas. These people who are living there rely on the board of county commissioners to protect their rural lifestyle. They do not take advantage of water and sewer services; they have septic tanks and wells. Even if they did take advantage of water and sewer services, user fees provide those services; they are not part of the tax structure. There are mutual aid agreements in place for fire protection. We believe this is a property-rights issue for the private property, we do not have much concern about the public property.
As you will see in the package, there is another interlocal agreement as an example (Exhibit Z). An agreement entered into last year between Clark County and the City of Las Vegas deals with federal lands in this area. Basically this is a result of the Southern Nevada Public Lands Management Act, whereby before the BLM will nominate or put a parcel up for auction, it has to be nominated by the local government. While in the northwest, we know the city needs to grow. All of the jurisdictions in southern Nevada are going to be growing. But since the city will be annexing federal lands in this area, Clark County will have to do the nomination as part of a joint process, which is then taken through the federal lands subcommittee of the regional planning coalition through a joint selection process. I just wanted to note, we have entered into an interlocal agreement for how we deal with federal lands in this area. We believe this is the appropriate solution to some of the other issues raised tonight in terms of alternate boundaries, planning issues, and the sorts of things we need to be working on here.
Senator Neal:
The individuals who own these undeveloped parcels, can they apply to the county for building permits to build on those parcels?
Mr. Rosenquist:
If they are in the county’s jurisdiction they come to the county. There are undeveloped parcels in the city, and they could go there also.
Senator Neal:
The parcels you are objecting to, are they within the county or the city? Are they owned by the city? Is the county responsible for them, or what?
Mr. Rosenquist:
I think we could probably break it into two areas. One is, we are dealing with a rural parcel and a rural neighborhood preservation area where somebody wants to do a well and a septic tank and put a single-family house on a larger lot which is county property.
If somebody wants to do a development, maybe assemble some parcels and come in with a larger parcel, even if the land is in the county now, but if they are going to do something like get into a smaller lot configuration where they are going to need sewer and water service, then they will go to the city and the city will say, “Well okay, we will provide you with the services.”
Senator Neal:
Does the city grant permits for it, or does the county?
Mr. Rosenquist:
For the vast majority of cases, it is the city. There have been a couple of instances where a developer has come into the county, and the county has approved the development and then the developer goes back to the city and says, “Okay, now I have my zoning entitlement, now, you guys provide me sewer,” there has been a couple of those instances.
Senator Neal:
The city is not able to annex the parcel, correct?
Mr. Rosenquist:
Correct.
Senator Neal:
But, the city is obligated to provide the services.
Mr. Rosenquist:
Again, it depends on if you are dealing with vacant land or an existing structure. All these site-specific circumstances are variable and they change from one location to another. But, if the county approves something the city did not provide services for and it stayed in the county, my guess is the city would not want it anyway.
Senator Neal:
A few years ago, did we not put a limitation on the wells going onto the city lines at a certain period of time?
Mr. Rosenquist:
The limitation is on community wells. Those wells which were common in the northwest area of the Las Vegas Valley, where you would see a community well in a cul-de-sac, and the one well served four houses, this is what you cannot do anymore.
Senator Titus:
Did we provide a fund to contribute 75 percent of the cost of going onto the public system for residences within so many feet of the street?
Chairman O’Connell:
There were two circumstances: one was if your well was dry and you had to dig down further, but could not dig down further because they lowered the water table; the other was if you were digging a new well, those were the two circumstances and the people who were having problems were those who needed to drill further, so the fund Senator Titus mentioned was put together.
Senator Neal:
But, all of this is in the general area because I recall specifically we were talking about the North Las Vegas area.
Chairman O’Connell:
Correct. I was thinking, because of those well owners, the county would probably be delighted to turn some of these over because they are very vocal folks. You are right, Senator Neal, this is exactly the area a lot of the wells are in.
Is there anyone from the audience who wishes to speak on A.B. 179? We will close the hearing on A.B. 179. The committee meeting is adjourned at 7:10 p.m.
RESPECTFULLY SUBMITTED:
Sherry Rodriguez,
Committee Secretary
APPROVED BY:
Senator Ann O'Connell, Chairman
DATE: