MINUTES OF THE meeting

of the

ASSEMBLY Committee on Government Affairs

 

Seventy-Second Session

April 2, 2003

 

 

The Committee on Government Affairswas called to order at 8:14 a.m., on Wednesday, April 2, 2003.  Chairman Mark Manendo presided in Room 3143 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Agenda.  Exhibit B is the Guest List.  All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

 

Note:  These minutes are compiled in the modified verbatim style.  Bracketed material indicates language used to clarify and further describe testimony.  Actions of the Committee are presented in the traditional legislative style.

 

 

COMMITTEE MEMBERS PRESENT:

 

Mr. Mark Manendo, Chairman

Mr. Wendell P. Williams, Vice Chairman

Mr. Kelvin Atkinson

Mr. Tom Collins

Mr. Pete Goicoechea

Mr. Tom Grady

Mr. Joe Hardy

Mr. Ron Knecht

Mrs. Ellen Koivisto

Mr. Bob McCleary

Ms. Peggy Pierce

Ms. Valerie Weber

 

COMMITTEE MEMBERS ABSENT:

 

Mr. Chad Christensen, excused

 

GUEST LEGISLATORS PRESENT:

 

Mr. David R. Parks, Assemblyman, District No. 41

STAFF MEMBERS PRESENT:

 

Susan Scholley, Committee Policy Analyst

Eileen O'Grady, Committee Counsel

Rosemary Zienter, Committee Secretary

 

OTHERS PRESENT:

 

Colleen Wilson-Pappa, Director of Government Relations, Southern Nevada Home Builders Association

Dan Musgrove, Office of the County Manager, Clark County

Mary Walker, Lobbyist, Carson City, Lyon, and Douglas Counties

Lawrence Werner, Carson City Engineer

Kimberly J. McDonald, Special Projects Analyst and Lobbyist, City of North Las Vegas

James A. Bell, P.E., Director, City of North Las Vegas Public Works

Kami Dempsey, Government Relations Manager, City of Las Vegas

Larry Haugsness, Director, Department of Field Operations, City of Las Vegas

Terri Barber, Chief Legislative Advocate, City of Henderson

Stephanie Garcia-Vause, Legislative Advocate, City of Henderson

Randy Waterman, Risk Manager, City of Sparks

Kristin Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney’s Office

Brett Kandt, Executive Director, State of Nevada Advisory Council for Prosecuting Attorneys

Alan Artz, Detective, Detective Division, Washoe County Sheriff’s Office

Kathryn Burke, County Recorder, Washoe County

Terry McHenry, Nevada Association of Land Surveyors

Greg Salter, Special Assistant to the Assistant City Manager, City of Sparks

 

 

Chairman Manendo:

Good morning.  The Assembly Committee on Government Affairs will please come to order.  [The hearing was opened at 8:14 a.m.]  Madam Secretary, please call the roll.  [Roll was called.]  Please mark members present upon arrival.  Mr. Christensen is in Judiciary and will be here later.

 

Committee, turn to our agenda.  We have our colleague, Assemblyman Parks, with Assembly Bill (A.B.) 390.  Mr. Parks, Assembly Bill 390 is yours. 

Assembly Bill 390:  Revises provisions relating to duties and liability of owner of property whose property includes or abuts public right-of-way. (BDR 22‑965)

 

David Parks, Assemblyman, District 41:

I am here with Assembly Bill 390.  It is a bill, a relatively simple bill that handles an issue that is certainly of concern to a number of residents.

 

Imagine, if you would, that you, your neighbor, or your parents live in a somewhat older home, in a nice enough neighborhood, on a fixed income; you are barely able to meet all of your needs.  One morning, you go to the mailbox, and there is a letter from the City of Las Vegas saying you have 30 days—it is a 30-day demand letter—to replace the sidewalk in front of your home.  This sidewalk is not on your property.  It is in the public right-of-way.  However, the City of Las Vegas is telling you to replace that sidewalk.  I think that is absolutely wrong, and, for that reason, this bill was brought forward to remedy an issue that seems to be, at this point, only a situation that the residents in the City of Las Vegas face.

 

I have with me today Ms. Colleen Wilson-Pappa, and she has some greater details on this issue. 

 

Ms. Wilson-Pappa, Director of Government Relations, Southern Nevada Home Builders Association:

[Introduces herself.]  I would like to thank Assemblyman Parks and the rest of the sponsors of this bill.  In the handouts I have brought, you will see information from the AARP [American Association of Retired People] and information from a disability group (Exhibit C).  Both reference a United States Ninth Circuit Court of Appeals decision that was handed down June 12, 2002.  The City of Sacramento, California, is appealing that decision (Exhibit D).  In that decision, it says that Title II of the ADA (Americans with Disabilities Act), Prohibition of Discrimination, Provision of Public Services, applies to the maintenance of public sidewalks.  You have a letter that we presented to the Las Vegas City Council, which outlines our concerns related to liability for the private property owner (Exhibit E), and you have a professional paper for a public administration class from a University of Nevada, Las Vegas, student, who happens to be a City of Las Vegas Public Works employee, which outlines the Public Works internal process for handling sidewalk claims (Exhibit F).

 

This is not a Home Builders issue; we came across it as we were working through some local ordinances and became concerned for our homeowners.  When we build curbs, gutters, sidewalks, and streets to the local government’s standards, they are inspected by the local government, the local government accepts the structures, the house is sold, and then the problem may arise 15 years later when tree roots grow, or just through use or wear, or through weather or other environmental factors when a sidewalk buckles.  Those create some access nightmares. 

 

[Ms. Wilson-Pappa continues.]  The primary goal of A.B. 390 is to ensure that local governments are responsible for maintaining and repairing what they own, which includes public sidewalks and public rights-of-way.  There is at least one Nevada jurisdiction that is putting the responsibility on individual homeowners.  North Las Vegas, Henderson, and Clark County respond, when someone calls in about his sidewalk being buckled or cracked, by going out and fixing it.  It is done on a complaint basis.  The repairs are not on the private property owner.  With the City of Las Vegas, if somebody calls and says, “My sidewalk is broken in front of my house,” the City says, “That is not our problem; you fix it.”

 

Here is the process that the person goes through if they have received a 30-day letter.  The person will first have to get a permit from the city, because it is public right-of-way; they don’t own the property so they have to get permission from the city to fix it.  Then they are going to have to find a contractor who will come out and fix two slabs of concrete; that is a smaller job for a contractor so it will be harder for them to fix.  They will probably pay three times what the local government would pay, because that private contractor would have to bring out all of the equipment for this very small job.  They are going to have to do a barricade plan.  That’s the process if no appeal is filed.

 

What we found interesting was, in that professional paper, done by a public works employee for a professional degree in public administration, who probably regrets that it is posted on the Internet, if an appeal is filed, you get a break.  To quote from that paper (Exhibit F):

 

Even though City Council will need to be the ultimate authority on any irremediable appeals to the Municipal Code, it does not appear to be the desire of City staff to place any of the appeals on the City Council agenda.  Perhaps staff determined the money spent to discuss and act upon each sidewalk repair case could be better utilized for the actual repairing of the damaged sidewalk.

 

This is one of the reasons we think the issue has never been heavily publicized and that homeowners don’t know about it.  It was not ending up on a city council agenda.  You will hear from some local governments that, if this bill passes, there will be a tremendous amount of sidewalk complaints, that a higher standard of care will be mandated by the community, and that the community will require weeds to be removed, among other things.  We doubt this is the case.  This bill is not about weeds; this bill is about public safety.  This bill is about buckling and cracked sidewalks which pose a danger to pedestrians, including parents with strollers, and those not as mobile as the rest of us, such as those people who must rely on wheelchairs, scooters, walkers, or canes.

 

[Ms. Wilson-Pappa continues her testimony.]  Those people who are opposed will also tell you it will cost millions and millions of dollars to fix these sidewalks.  Again, I will say that these are public sidewalks.  Each of us is a taxpayer; each of the homeowners is a taxpayer.  Where is their money going, if not to maintain what they own?  Among the exhibits I mentioned earlier is the Barden v. Sacramento case, a very recent case, decided by the Ninth Circuit Court of Appeals, under which Nevada also falls.  Basically it stated that maintenance of the public sidewalks is a normal function of the municipal entity.  Again, I want to point out that Sacramento does not agree with the decision of the Ninth Circuit, and several other cities—they are going through a big drive of trying to lure other cities into this debate—and the National League of Cities is trying to appeal this decision to the United States Supreme Court. 

 

A.B. 390 is also about removing liability for public facilities from an individual homeowner who cannot control the use of public access, which belongs to the public.  Even if the private homeowners were sued, they probably would not be found liable.  As a private homeowner, if someone sues you, you are going to have a panic attack.  You are going to hire a lawyer.  Those are costs the individual homeowner, even if found nonnegligent for that public right-of-way that is not owned by them, should not need to go through.

 

The Southern Nevada Home Builders Association believes, to protect our citizens and to insure that sidewalks get fixed in a cost-effective and timely manner, there should be language in state law requiring public entities to maintain and repair public rights-of-way including sidewalks owned by the government for use by the public; they are not private property.  This would extend to streets, public streets, and median islands, and those things that the public is putting in. 

 

Clark County did approach me with some amendments to A.B. 390.  There were a couple of issues that they were concerned about as their district attorney approached them and interpreted the bill a little more broadly than it was intended.  For instance, if somebody comes in and changes the use of the property from residential to commercial, and they need to widen the streets, they would want to make sure that that builder would widen them.  The amendment, if it fixes that possibility, is not a problem.  In some communities, there are private streets.  This bill is not about private streets.  It is about public rights-of-way. 

 

[Ms. Wilson-Pappa continues.]  There are some communities that sometimes require something that is above the standard.  The local governments only want to maintain what is standard.  That would be okay as long as you make it very clear up front that the homeowners have some responsibilities for the maintenance and repair of those facilities.  This is also a “slippery slope,” however.  Although we support their amendment, that is a situation where the standard is for straight streets.  Their planning department has started to require meandering sidewalks.  Even though it has been a requirement from the planning department, the public works department will not maintain those, because those are not their standard.  You are starting to see the “slippery slope.”  The City of Las Vegas put this in their code in 1983.  It is the first time that anyone had noticed it.  Primarily, if someone complains about it, they won’t fix it or won’t address it.

 

I want to leave the Committee with one question.  If maintaining public rights-of-way owned by the local government, which provide access for all and provide a service to the public, is not a responsibility of local government, then what is?

 

Assemblyman McCleary:

Last night the Mayor of Las Vegas and some of his lobbying people were in my office lobbying on this bill.  I am a cosponsor on this bill, and I wholeheartedly agree with the sidewalk issue.  Their argument to me was about building a new subdivision and the builder builds an island out there with palm trees and beautiful landscaping.  The city people would be required to maintain that island.  That was what they were opposed to.  Could you address that?

 

Assemblyman Parks:

We are not asking for this level of extreme.  Normally, if somebody comes in and builds a subdivision, and says, “Here are our plans; we want a landscaped median for our entry feature.”  The city, at that point, will say, “Sure, if you want to put it in, we will accept it, but you are going to have to maintain it.”  That would have to be a homeowners’ association responsibility.  We are not looking at that in A.B. 390. 

 

Envision, if you would, your own neighborhood and consider some of your neighbors who might get a 30-day letter demanding that they repair the sidewalks in front of their home.  This is clearly a right-of-way issue.  It is in the right-of-way, it was approved—we don’t know if it was a major developer or a single individual who built a home—but, at some point, when that house was developed, it was approved by the city as being built to code specifications that the city found it required.  Once it was completed, it was accepted by the city for its maintenance.  Now, what they are doing is changing the rules; they are saying that you must maintain the sidewalks.  I think what they are trying to do is also throw up the thing about the medians.  If they accept the medians, I don’t know of many cases today where any local government says, “Yes, you put the median in, you landscape it, and we will maintain it.”  Normally, the city people are putting requirements on all of the developments to set up an improvement district that would maintain it.

 

Assemblyman Grady:

When you led off with the story, I can tell you it did happen in northern Nevada.  My father-in-law had the exact situation that you are talking about.  He had to replace the sidewalk in the right-of-way in one of the northern Nevada cities.  It is happening in both the north and the south.

 

Assemblywoman Weber:

Is this primarily occurring in the older neighborhoods where there are big-rooted trees, and the trees are causing the sidewalks to buckle?  The reason I ask that is that I have seen a similar situation in southern California.  My girlfriend, who lives in an older neighborhood, has trees that are very tall and had caused the sidewalks to buckle.  With landscaping that developers put in, there are sometimes design problems when those landscape features go in at the front of a house.  They can actually cause, if there are landscape problems or incorrect soil is put in or incorrect watering schedules, problems for the homeowner. 

 

Assemblyman Parks:

Yes.  There are many factors that can come into play to cause sidewalk buckling.  Even on major, older streets, the high summer temperature will cause concrete slabs to lift along a sidewalk.  Trees, especially mulberries, have a very shallow root system that love to slip under the sidewalks and start lifting them.  Soils, in general, may be a condition that could cause damage.  Added water in a neighborhood may cause many things to happen.  Segments of streets will just sink because of excess or the lack of water from the time it was constructed.  What I would say is, “Yes, this is usually a situation that happens in older neighborhoods.”  Concrete features do not always last forever.  From time to time, they have to be replaced.

 

Dan Musgrove, Director, Office of the County Manager, Clark County:

[Introduces himself.]  As Colleen Wilson-Pappa testified, we have been working with the Home Builders on this issue, specifically with Colleen.  Our folks had some concerns that there needed to be a little strengthening of language put into A.B. 390 to make sure that, in some of the examples that she cited, it would be allowed.  Specifically, I point to items (b) and (c) on the proposed amendment (Exhibit G).  If you look at the amendment, item (a) relates to another bill that will be heard in this Committee, A.B. 499, regarding maintenance districts.  I was waiting for some people to respond to me this morning regarding section (a).  I don’t feel comfortable in explaining that section to you.  Perhaps you would allow me to get back to you at a later time as to why section (a) is needed.

 

[Dan Musgrove continues his testimony.]  Obviously, items (b) and (c) are easier to explain.  Section (b) talks about reconstruction as approval for a change in the use of the land.  Any time there is an existing zoning and a developer comes along and wants to make it more intense, there is concern.  An example would be a developer who has a commercial strip mall and decides to put a bar in.  With a bar, tavern, or restaurant, there is going to be a much greater traffic demand on that mall.  Let’s say that we need to require a median or a right-hand turn lane.  Because it goes beyond what we plan the zoning to be, we would ask that the developer be responsible for those items that needed to be added with a change in property use.  Most developers would be willing to do that to augment their facility.  Any time you are making the use of the existing zoning more intense, there is mitigation that needs to occur.  That makes Section (b) important.

 

Section (c) relates to a development such as Summerlin.  Those of you from southern Nevada who have seen that area know that they have some beautiful medians and things well above what we would normally require of any developer.  They do that on their own to make it attractive and to make a better living environment.  We would want to enter into an agreement with them that, if they were going to go above and beyond what we ask for, they would maintain that.  There is an issue in Clark County.  Public works and the planning department are somewhat at odds in terms of what is required.  That is something we need to work on internally.  I am not sure what the appetite of this Committee is, but our feeling is that, if special landscaping and sidewalks are requested on behalf of the developer that deviate from our general standards, then that would be the responsibility of that developer.  That is what this amendment does to A.B. 390, and we would hope that you would consider it.

 

Assemblyman Collins:

The concern that I have is, for example, that local government requires that those easements be given or granted for public access and utilities.  Secondly, the local government or county or other entity approves those building plans for the meandering sidewalks and landscaping that go beyond your standards.  If you approve them, shouldn’t you be accepting them or not allowing them to vary from your standards?

 

Dan Musgrove:

The fact that we approve them means that we believe that they are safe and either meet or exceed standards.  The fact that the developer is requesting to go beyond what we believe the taxpayer should be responsible for should not be on the backs of the taxpayers.  If there is a minimum standard that we all feel, for safety and public right-of-way, is needed, and the developer wants to go above and beyond that to make his facility unique, then that is the developer’s responsibility and should not be the responsibility of the taxpayer. 

 

Assemblyman Goicoechea:

If an easement is dedicated or acquired, does that not make a difference?  Technically, a dedicated easement reverts back to the property owner if the easement is vacated. 

 

Dan Musgrove:

I am not an expert in this area, and I am not sure.  I can get that answer or there may be others in the room who could easily answer that question.

 

Assemblyman Goicoechea:

In some areas, in some communities in northern Nevada, by ordinance they have established that it is the responsibility of the property owner to maintain that sidewalk, especially if it is on a dedicated easement.  How would this law fly in the face of local ordinances?

 

Mary Walker, representing Carson City, Douglas, and Lyon Counties:

We do have some concerns regarding A.B. 390.  We would like to talk with you about some unique situations that happen in northern Nevada.

 

Lawrence Werner, Carson City Engineer:

In reviewing the bill and hearing some of the comments this morning, there were some issues that we face, maybe more in the rural counties than they do in the larger ones.  One of the things that came to mind very quickly is the definition of the right-of-way and where this law would have impact.  For example, a lot of Carson City is laid out with 60-foot rights-of-way, the old township plan.  Our street improvements might occupy about 40 feet of the   60 feet.  People’s homes, in their home building, have brought their fences right up to the sidewalks.  Their landscaping, their fences, for example, are in the public right-of-way.  We allow that because there is no adverse public policy issue on that.  But, with this law going into effect, what happens to those private improvements that are now in the public right-of-way?  Essentially, that is in all of the older parts of Carson City, maybe in many other towns, too.  This is kind of a no-man’s land about what happens to those improvements. 

 

[Lawrence Werner continues his testimony on A.B. 390.]  The other area that is faced in newer developments that becomes a concern is the area that does lie between the back of the sidewalk and the property line.  There is always some area there that is a right-of-way that is made available for private utilities, gas, power, electric, and others, that has been historically maintained by the property owner.  It might be a grass strip that lies between the sidewalk and the property line.  It can vary anywhere from 1½ feet to maybe 7 or 8 feet. 

 

The other area that we in the north face is snow removal.  We have a big problem with snow and ice removal on sidewalks.  If we were to assume the responsibility for removing all of the snow and ice from all of the sidewalks, we simply couldn’t do it.  Right now, it is the responsibility of the homeowner to make sure that his sidewalk is safe in front of his business or his home, particularly when it comes to snow and ice removal.  These are areas where we need to offer some amendments or work with Assemblyman Parks on trying to address some of these issues.

 

Street improvements required when there is a change in land use or a remodel or change in the building structure would be another concern.  For example, there might be a driveway location that’s currently on one existing street.  A building permit might come in that requires a modification of the building and the people might want to relocate the driveway.  They are going to have to be responsible for the removal of the old driveway, putting a sidewalk through there, and then constructing the new driveway that should not be a part of the local government agency. 

 

The other issue that we have is that there are many private, adjacent property owner-caused problems that should be addressed by the property owner.  For example, most of the buckling of sidewalks in this area is caused by trees that are planted on private property.  The majority of the sidewalk repairs that we do, probably in the neighborhood of 95 percent of them, are based on private property trees with roots coming into the public right-of-way raising and lifting the sidewalk.  The issue then becomes, “Is it the private property owner’s responsibility, because their private plantings are causing problems in the public right-of-way?”  We do have, in Carson City, a 50/50 program that addresses some of the older areas and some of the economically disadvantaged areas.  The 50/50 program will insure that the city will do the labor on the sidewalk repair with our street crews provided that the property owners buy the concrete.  That has been a very successful program here in Carson City.  We look at the economic situation and the location, and evaluate that into the process. 

 

[Lawrence Werner continues.]  Another area is that we do have a problem in Carson City where people in the summertime, in watering their lawns, water will flow across the sidewalks, moss grows, and the sidewalks become slippery.  That should also be a problem of the private property owner to take care of.  We do have many areas like that.  While the bill, on its face, seems fairly simple, there are some complexities to it that we do need time to try to work out.  Maybe we could all try to work out amendments that would address the issues of the southern Nevada folks, too.

 

Assemblyman McCleary:

One time my big mulberry tree grew over the fence and was hanging pretty low.  The city told me that I had to cut it.  Would the bill, A.B. 390, change that responsibility also?

 

Lawrence Werner:

I believe the way I read A.B. 390, it would make the city responsible for taking care of that branch.

 

Assemblyman McCleary:

I don’t think that was the intent of the author.

 

Lawrence Werner:

We agree with you.  There are those kinds of issues that really need to be addressed.

 

Assemblyman Goicoechea:

Your snow removal is established by ordinance, and the local ordinance does require that the property owner does, in fact, maintain and remove snow and ice from his sidewalk?

 

Lawrence Werner:

That is correct.  Carson City has had an ordinance since the late 1960s that put the responsibility on the adjacent property owner for maintenance of sidewalks.  We have had an ongoing problem with some of the issues as described today.  We would send out the 30-day notice and do the same kinds of things, but we are somewhat judicious on how we do that, and, where we can help, we try to do that.  Yes, we do put that responsibility on the homeowner.

Mary Walker:

I would like to summarize.  Basically, what we are talking about is an amendment which would exclude sidewalk improvements and street improvements when people come in for a building permit, because they are going to be working and digging up the sidewalk or whatever.  That should be excluded.  We would also like to exclude sidewalk snow removal.  This year has been a very nice year, but sometimes we will get two to four feet of snow in one storm.  These guys are out there working 24 hours a day on those big engines you guys drove the other day.  There is no way we could get to those sidewalks; the responsibility has to be on those property owners.

 

The other part of the amendment would be that the property owners should maintain, reconstruct, and repair their own driveways, because, under this bill, we would be responsible for their driveways.  Also, we believe that the other part of the amendment should be that the property owners should be liable for those things that they do that cause problems in the right-of-way.

 

Assemblywoman Pierce:

So the way it is done here, it’s a 50/50 arrangement, or is it only 50/50 if there is a tree on private property that is causing the problem?

 

Lawrence Werner:

It’s 50/50 based on the economic situation of the private owner.  It could be a tree causing problems of the private owner.  Unless there is something coming from the private owner’s side, we generally don’t even repair the sidewalk.  There is nothing that impacts this sidewalk that causes it to be damaged that doesn’t come from a tree.  We have very little else that would do so.

 

Kimberly J. McDonald, M.P.A., Special Projects Analyst and Lobbyist, City of North Las Vegas:

Unfortunately, the City of North Las Vegas cannot support Assembly Bill 390.  We do feel that it will prohibit the city from requiring the maintenance of public rights-of-way as well as removing the liability of the property owner.  We also have Jim Bell, our Public Works Director, to speak to some of our more technical issues and some of the ideas we have as well.

 

James A. Bell, P.E., Director, City of North Las Vegas Public Works:

While it seems that the intent of Assembly Bill 390 is to protect the public from costly liability and other costs for quasi-public improvements and to make public entities more financially responsible, there are a number of negative consequences as previously mentioned.  There are even further negative consequences.

 

[James Bell continues.]  The bill as written will really eliminate the major components from master plan communities.  Thematic improvements are jeopardized, basically removed.  Maintenance of these unimproved landscaped strips—we have a number of them in North Las Vegas, especially in older neighborhoods and in some cases, in the newer neighborhoods— between the normal improvements that the public sees and the private property are issues.  These strips vary in size; some are large; some are very small.  The objectives of the state and of the NDOT (Nevada Department of Transportation) were really to have maintained highways and freeways.  The bill could jeopardize that program, which is one that the Governor really did try to embrace.  These kinds of improvements could be jeopardized. 

 

Private owners benefit from the public right-of-way.  This includes the area of maintained landscaping that they would want to install, through the normal use of encroachment permits.  Both NDOT and our city have specific encroachment permits for positive, beneficial uses to private property.  The effect would be more concrete and asphalt and less aesthetic neighborhoods.  Increased costs to the public would be an issue.  Ultimately, if we look at the example of master plan communities with very thematic improvements, we would deprive our budding properties of this.

 

We would end up with a poor tax base.  We want to improve our tax base, state, cities, and counties.  Less private investment would be something we definitely do not want to do.  We need people to improve their properties, especially their frontage properties.  This includes commercial and private landowners as well as homeowners. 

 

Chairman Manendo:

You are saying that you think, without a doubt, the responsibility of the sidewalks is the homeowner’s.

 

Jim Bell:

I think the law goes far beyond the sidewalk issues.

 

Chairman Manendo:

Specifically, on the sidewalks, whose responsibility is it?

 

Jim Bell:

Our view is that public sidewalk maintenance, unless provided by a maintenance agreement or some other condition, is accepted by our city.  We would encourage people to be part of our city, because we are going to maintain their sidewalks as part of our public property.  I am glad to see that we have an advantage for those who move into North Las Vegas.  But, if there is a maintenance agreement, part of a master plan community, or if these other improvements are there, then the law should not override these things.  I think the law basically destroys much flexibility.  It destroys property advantages here.  I am sympathetic to the sidewalk maintenance issue, but I believe responsible government is to maintain reasonable improvements.  We feel that is our goal to do so.

 

 

[Mr. Bell continues his testimony regarding A.B. 390.]  There are many improvements at stake with A.B. 390.  Obviously, snow removal can’t be taken care of by government.  There are other issues, too.  We don’t have snow in southern Nevada very often, but what we do have is Bermuda grass, especially in the older neighborhoods.  You will see Bermuda grass everywhere.  This grass is very tenacious.  Private property owners are the source of where it comes from.  They need to take care of this issue.

 

Things that weren’t mentioned include sewer laterals.  They have to maintain those.  The blockages on the private side that go to the public side of the property needs to be maintained.  We don’t want an increased level of maintenance on those kinds of things.  Those require normal maintenance by the property owner.  Overhanging tree issues in North Las Vegas are part of a tree ordinance.  Private property owners need to be responsible.  The roots are as big as the canopy of the tree.  They can, in fact, affect public property.  If we were to go in there to trim all of those trees, a much higher standard would be held to.  Our maintenance is tied to the General Fund, which is jeopardized.  In my department, that is one of my biggest issues, inadequate funding, especially in the general funding for roadway maintenance which is very much threatened.  Increased duty in that area is not funded.  We have a real problem there.

 

From all aspects, we see the bill as written really does destroy many of the quality-of-life aspects that are present right now.  My view is that, if the public were responsible for maintaining sidewalks, it should be by a public disclosure of some sort.  When a person goes into a master plan community, it would be disclosed to them.  If they want to sign up for an encroachment permit, there is disclosure and acceptance.  We feel, typically, our process does not have the problem and will not have this problem.  We feel that we want to keep open all of these options to build a better community, so we are opposed to the bill as written.  We do have some concepts that would improve it, but I think we serve the public in a very fine manner and to provide this law as written would be very detrimental to our city.

 

 

Kami Dempsey, Government Relations Manager, City of Las Vegas:

You have heard a great deal about sidewalks.  We have our expert, Larry Haugsness, our Field Operations Director, who will cover many of the points and questions that have been posed to you today.

 

Larry Haugsness, Director, Department of Field Operations, City of Las Vegas:

I am here today to voice opposition to Assembly Bill 390.  We estimate that this bill, as it is written, would cost the City of Las Vegas $5 million to $10 million a year.  We have talked about sidewalks here this morning.  That is some of the concern.  We did a little research that I would like to share with you.  In the state of Nevada, Carson City, Reno, Sparks, Henderson, Boulder City, and the City of Las Vegas, all have ordinances that delegate some responsibility in varying degrees to property owners. 

 

We also went a little further and looked at cities in surrounding areas.  The Cities of Phoenix, Tucson, Albuquerque, and San Diego have similar ordinances.  From my own personal experiences having worked in two midwestern cities, both of those cities had similar ordinances.  It is very common for cities to have ordinances that place a certain amount of responsibility on the property owners for sidewalks.  You heard many of the reasons here such as tree roots, ice, et cetera.  There are certain things that cities cannot control.

 

Beyond the sidewalk issue, though, the way the bill is written, we are very concerned about some provisions that would require that the property owner would not have any responsibility for unimproved rights-of-way and, even more than that, improvements in the rights-of-way.  I will go through a few things that really caused some concerns for us.

 

Utilities are an area of concern.  This would mean, in our opinion, that sewer laterals, the individual lateral coming from a house to the main sewer line, would become the responsibility of the city.  We talked about medians and landscaping items.  Some of these things cost a large amount of money.  In Summerlin, the city actually maintains a portion of the landscape on Summerlin Parkway via an agreement.  The water bill alone for that portion of Summerlin Parkway, from Buffalo to Town Center, is between $130,000 and $160,000 per year.  That is just for the water and does not include any maintenance.

 

Another good example is, by doing this, we think it will, to some degree, harm some of the older neighborhoods.  Many of the improvements that are installed are in newer developments like Summerlin, like Elkhorn Springs, where there is a great deal of landscaping installed in the public rights-of-way that would now be the responsibility of the city in total.  So we would be saddling some of our older residents with some of those things to support through taxes. 

 

[Larry Haugsness continues.]  We are also concerned with encroachments in the rights-of-way.  We do give people permits to do things in our rights-of-way from parking lots to entry statements and really a variety of things.  An interesting example in Summerlin, in the Del Webb community, is the three tunnels that connect their golf courses.  The way we read this bill, the way it is written, we would then be responsible for maintaining those tunnels for a golf course community. 

 

Another thing that is interesting, which I heard earlier, is that the city’s ordinance went into effect in 1983—although there is an ordinance, I think, that dates back to 1949—and is when the city first started doing that.  If this     A.B. 390 were to pass, we think there are some things that the city would have to do.  We would have to look real hard at more stringent design and construction standards.  We would consider asking for long-term maintenance bonds to insure that the improvements installed by developers were of good quality.  We think it would affect the aesthetics of the city.  Any city council would not want to be involved in much landscaping, and that ends up somewhat lowering the quality of life.  We also think that this bill would cause “big government.”  If we are going to spend $5 million to $10 million per year, it is going to take people to administer that, whether it is doing the work or administering contracts.  It is really about “big government” which we would like to avoid if at all possible. 

 

I want to come back to my original statement.  It would cost us between       $5 million and $10 million per year. To do this at a time when everybody is looking at budget crunches, the state, the cities, and others, where would the money come from?  Public safety?  Parks and Leisure?  Neighborhood projects?  Where would it come from?  Those would be tough decisions for our council to make. 

 

Assemblyman McCleary:

I see some problems, some from the testimony that has been given and things I did not foresee in this bill.  My primary concern is with the sidewalks.  You mentioned that all of these different municipalities have some kind of maintenance ordinances for these sidewalks.  In Las Vegas, what part of the responsibility for the sidewalks do you all take?

 

Larry Haugsness:

The city ordinance is pretty clear.  We do work with the residents.  As of yesterday, we only have two unresolved sidewalk complaints in the City of Las Vegas.  We do try to work with people; we do some cost sharing, nothing very formal.  We try to make emergency repairs.  Occasionally, the council has ordered us to make repairs after voting for money to do the improvements.

 

Terri Barber, Chief Legislative Advocate, City of Henderson:

We, too, oppose Assembly Bill 390.  As was stated earlier, the City of Henderson, in our code, states that we have requirements that do not cause an abutting property owner to repair adjacent improvements, but they are required to maintain the sidewalk in terms of removing ice or other hazardous objects that may be in the way.

 

As you know, the City of Henderson is unique in that we have several master plan communities.  I am concerned, as is our legal counsel, that this bill would render some of the agreements that we have with those master plan communities, whereby they are required to maintain the public right-of-way, not in effect anymore.  That is something we would like the opportunity to be able to address.

 

The Community Development Department in our land use process requires that developers and homeowners maintain bike trails, medians, and other amenities.  This would have a huge cost impact by transferring all of this maintenance to the city.  I wish I could tell you today how many of those agreements we currently have in place, but I don’t have that number in front of me.  I would like Stephanie Garcia-Vause to describe to you, in greater detail, how some of the master associations work, and, in some instances, we have subassociations that go along with that.

 

Stephanie Garcia-Vause, Legislative Advocate, City of Henderson:

One of the things that Henderson has really benefited from has been the development of master plan communities.  For marketing reasons, for design reasons, many of these master plan communities have gone far above and beyond our landscape, our median, and our sidewalk requirements.  For example, Green Valley Ranch has a 20-foot median, approximately, that is lushly landscaped with shrubs and trees.  The master association for Green Valley Ranch is responsible for that maintenance and for plantings as opposed to the Henderson-maintained medians which might be 5 to 10 feet wide with rocks and 5-gallon to 10-gallon shrubs planted every 20 feet on center. 

 

We feel this bill would impact us, especially in those master plan communities, where those agreements were negotiated with those master developers, and assessments are already built in to charge the homeowners who reside in those master plan communities. There are subassociations in many instances who also pay to maintain lush landscapes to the entries of their own developments. 

 

[Stephanie Garcia-Vause continues.]  This bill would really impact us, because we have most of our new-growth areas that we intend to have developed by master plan communities in the         west-Henderson area.  That is sandwiched between Anthem and Seven Hills, if you are familiar with southern Nevada, and the Interstate 15 freeway.  The majority of that development will be occurring in this master plan community style, and we would imagine that they would also want to have the option of developing more lush landscape and more lush medians. This bill would impact us very severely.

 

Randy Waterman, Risk Manager, City of Sparks:

I would like to voice our opposition to A.B.390.  We are also concerned about the additional costs that it will place on the City of Sparks.  Like Carson City, obviously we are here in the north; we have the concerns about snow removal, overhanging trees, and also having to maintain that portion of driveways that interface with the street.  I am also concerned with the potential liability that the bill would place on the city. 

 

As has been mentioned before, there are ordinances on the books in many cities, including ours, that do put the requirement for maintenance and upkeep of the sidewalk on the adjacent property owner.  We, at this point in time, do not have the staff or the funding to do a full maintenance program on the hundreds of miles of sidewalks and rights-of-way in the City of Sparks.  Like every other public entity and probably most private entities, we are strapped for funding.  However, if this bill should go forward, we would clearly support the amendments that have been proposed.  I think they are all useful amendments. 

 

David R. Parks, Assemblyman, Assembly District No. 41:

I think I owe you an apology.  When you walked into this building today, snow was coming down.  During this hearing, you have been definitely “snowed.”  This bill has nothing to do with master plan communities.  This has everything to do with publicly owned rights-of-way.  In master plan communities, the community itself owns them. 

 

A.B. 390 was never intended to pursue the issue of snow removal and the general day-to-day maintenance of sidewalks nor other types of encroachments.  Nowhere in A.B. 390 does it talk about trees hanging over.  I think that the bottom line here is that this is a situation—the city talked about $5 million to $10 million costs, and I sure would like to see their numbers—where they talked about their ordinance dating back to 1949.  Their ordinance was adopted in 1983.  Ordinances do not have precedence over state statutes. 

 

The bottom line is that it appears that you keep hearing the comments about liabilities for each of the cities; the reality is that the cities do not seem to have any problem with pushing that liability over onto a homeowner.  With some amendment to this bill to clear up what seems to be massive confusion, I would be happy to bring it forward to you for further consideration if that is your pleasure.

 

Chairman Manendo:

We are going to close the hearing on Assembly Bill 390.  Mr. Parks is backing cleanup amendments on his own piece of legislation.  It is the intention of the Chair to hold this bill and see if some things can be worked out.  It would then be the intention of the Chair to move this piece of legislation forward in some way.  If there were any amendments, I would request that the sponsor of the bill and the Chair of the Committee obtain copies.  If not provided to each of us, this Committee will not consider the amendments.

 

Next on the agenda will be Assembly Bill 459. 

 

Assembly Bill 459:  Authorizes county recorder to deny recordation of certain documents. (BDR 20-283)

 

Kristin L. Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney’s Office:

Basically this piece of legislation, A.B. 459, addresses nuisance liens.  Nuisance liens are liens that are filed in retaliation against public officials, government employees, even neighbors.  These liens are filed, usually for millions and millions of dollars, without any type of due process.  No lawsuit has been filed; no judgment has been entered.  They are simply pieces of paper that are filed with the county recorder’s office. 

 

Naturally, these liens wreak havoc for the person they were filed against.  What usually happens is that the person who has the lien filed against them has no idea that the lien has been filed, none whatsoever.  When they go to sell their house, obtain a loan, or open a small business, they discover this multimillion dollar lien has been filed against them.

 

Filing these fictitious liens is an easy thing to do.  You can find forms on the Internet; in fact, there are Web sites on the Internet encouraging people to file these fictitious liens against government employees set up by antigovernment factions. 

 

This piece of legislation, however, does provide an opportunity for judicial review if, in fact, a document is denied recordation.  This process of review includes a letter sent to the person requesting the recordation of the document that states the reason for not recording the document and explains the right of judicial review in order to reverse the decision not to record.  Finally, the letter contains information that there is criminal liability for attempting to rerecord the exact same document.  It is my understanding that approximately 30 states have similar legislation addressing this issue that is becoming more and more common.  We hope for your support.

 

Brett Kandt, Executive Director, State of Nevada Advisory Council for Prosecuting Attorneys:

I am testifying on behalf of the Advisory Council to express support for Assembly Bill 459, which was introduced on behalf of the Attorney General and at the request of the Nevada District Attorneys Association.  As already indicated, A.B. 459 would amend NRS Chapter 247, which is the county recorder chapter, to authorize county recorders to deny recordation of certain documents.  It provides for judicial review of such denials to ensure due process.

 

A.B. 459 is intended to prevent abuse of the county recording system while, at the same time, ensuring the recordation of legitimate documents.  A.B. 459 would grant county recorders discretionary authority to deny the recordation of unauthorized or falsified documents.

 

County recorders are regularly presented with documents for recording that are clearly falsified and/or interposed for an improper purpose.  Many of these documents purport to be nuisance liens resulting from legal judgments entered against the state, local governments, elected officials, private individuals, and/or large corporations.  No matter whose name is the alleged judgment-debtor, these phony documents can have adverse consequences to the operations of business and government in Nevada. 

 

Contending with such bogus documents can be problematic for legal counsel as well.  As a former senior deputy attorney general, I represented the State Treasurer and the State Controller.  On several occasions, I was confronted with mock judgments amounting to millions of dollars purportedly entered against the state and its constitutional officers and recorded in one or more counties.  Other documents included sham writs of execution, nuisance liens, and other counterfeit documents.  A.B. 459 would prevent such abuses of the system while providing constitutional due process when recordation of a document is denied. 

 

On behalf of the Advisory Council, I hope the Assembly Government Affairs Committee will act favorably on A.B. 459.

Alan Artz, Detective, Detective Division, Washoe County Sheriff’s Office:

I want to cite an example that has occurred in our county.  There are two handouts in your possession.  One is a brief explanation of how out of control one individual can be and cause problems for the government (Exhibit H).  The second handout shows a document filed in Washoe County within the last two years (Exhibit I).  It was recorded by the county recorder as required; it is a lien against various public officials involved in the family court system, judges and attorneys, in Washoe County.  It shows, I believe, around $38 million in liability that this individual is claiming the public officials owe him.

 

Approximately three years ago, a group of individuals, including the man who is on that one document, were discovered in our county jail.  They had produced identification cards for themselves that identified them as investigators for what they called “The Civil Rights Task Force.”  Some of their ID cards had promissory oaths recorded on the back, recorded by the county recorder with her signature.  They produced badges and jackets that said “CRTF” across the back of them and had embroidered badges on the chests of the jackets.  We know for a fact that these gentlemen were able to make two contact visits in our jail with inmates in custody for felony charges without being searched or questioned by our visiting clerk because of the official appearance of their identification cards, which were actually documents produced on their home computers.  We felt that provided a real security risk for us.  We are opposed to the recorder having to accept these types of documents for recordation for that specific reason.

 

Assemblyman Grady:

On page 3, line 40, where it says “the recorder determines,” I am a little nervous about that, since the recorder is not an attorney.  I think you are putting an awful lot of pressure on our recorders to make the determination.  Yet, further on in the bill, it says, “They cannot be held liable for damages.”  Have you talked with the county recorders at all about A.B. 459, and how do they feel about the bill?

 

Kristin Erickson:

We do have the Washoe County Recorder, Ms. Kathy Burke, present here today.  I am sure she would be happy to address that issue.

 

Kathryn L. Burke, County Recorder, Washoe County:

The recorders do not have a tool right now to allow us to reject these types of questionable documents at the counter, so everything is coming in.  There is also no penalty for the person who does present these fictitious liens. 

 

[Kathryn Burke continues.]  We are seeing more and more of these fictitious documents in the state of Nevada, especially since there are many states that have already adopted language within their laws to be able to deny the recordation of these documents.  They are very blatant.  I brought examples of a couple of them from the past year or so that had come through the Washoe County Recorder’s Office. 

 

I have also talked with U.S. Bankruptcy Judge Gregg Zive, as there was one recorded against him that went through Lyon County.  He had to go through the process of going through court to be able to get that off his record, to be able to clean his record up.  Unfortunately, being a judge, he will not be able to be here to testify in support of A.B. 459.  On his personal behalf, he has let me know and has sent me the code used in Idaho, Ohio, and other states that already have this form of language.  The language in this bill came directly from case law and through the National Conference of State Legislatures that have already enacted this sort of legislation. 

 

As far as recorders go, it is not an easy job.  We don’t want to be a judge.  If it got that judgmental for us regarding these documents, we would probably just record it.  The difference is that the blatant documents are extremely blatant.  They have nothing judicial on them, they do not come through the court system, and it’s very clear that they are homemade documents.  There’s no question.  After you have some experience as a recorder, it’s very clear.  These documents are frivolous liens, and they are not based on a legal, enforceable claims or rights.  County clerks and recorders may receive hundreds of filing every month, and, without a law or directive to the contrary, we are obligated to accept and record virtually all liens presented for recording. 

 

One of the cases demonstrates that there is potential for violence in these cases.  There is concern for all public officials.  Very close to us at home, it was reported, and we have watched this for several years, in Stanislaus County, California, that the clerk, Karen Matthews, was beaten and her life threatened, because she refused to record fraudulent documents for common-law extremists.  Even those who have had personal skirmishes with the extremists recognize that many common-law advocates have committed ideologies and believe they are defending their God-given or constitutionally derived rights.  These people honestly and sincerely believe that they are at war with the government, according to Ms. Matthews.

 

Are we concerned about refusing to record some of those fraudulent documents?  Obviously, we are.  But those documents are so blatant.  I also believe that we have very strong support through the district attorney’s office.  Every time one comes to my office, the district attorney’s office gets a call from me.  They are getting very burdened, as they can’t refuse any more than I can refuse, at this time, because we don’t have a tool to do so.  Given the tool, we will give our best ability to be able to refuse to record.  Not given the tool, then we will continue to take all of these.  I cannot guarantee you that 100 percent of these will always be caught, because of the volume coming through our offices.

 

[Kathryn Burke continues.]  Assembly Bill 459 is enabling legislation.  If we miss one, hopefully, that will not be held against the recorder or other government agents or offices.  We will do our very best to refuse to record those that are so clearly blatant to us.

 

Assemblyman Goicoechea:

It looks extremely difficult, when presented with a document that has been notarized, to say, “No, I won’t record that.”  Under the statute, at the point you refuse to record a document, would you then submit it to the Attorney General’s Office?

 

Kathryn Burke:

My understanding from the district attorney’s office is that, if we catch these first, we can refuse to record any document that’s not a recordable document as long as it does not meet the recording requirements.  The first step would be to refuse immediately to record and make the person come back with something recordable.  We would then go to Step 2, which is the judicial review.  Hopefully, we won’t get to Step 2.  I hope that we don’t have to go through that judicial review.  I hope, with the tool provided in A.B. 459, that we will be able to refuse right from the beginning, and that will not happen. 

 

We are receiving documents from other states like Montana, California, and Idaho, for example, where the law is already in place and the people can go nowhere else in those states to record.  They are coming into our counties, even though they have nothing to do with anyone in our counties.  Some are against the President; some are against Colin Powell, and others.  You cannot believe how many frivolous liens there are against people all over that have come through our office.  Those are blatant.  You can very well tell that they did not go through a judicial process.  I am hoping those can be refused at first; if that judicial process happens, that would be when we meet with the district attorney.

 

Assemblyman Goicoechea:

As I read the document, though, it says if you refuse to record the document that, within two judicial days, you have to supply back the rationale why you refused to record it.  Would you feel comfortable giving out that rationale in writing?  I am thinking that, in some of the rural counties, they might have to depend on the judicial system or the district attorney to say why they felt it was frivolous or what they saw that was wrong in it.

 

Kathryn Burke:

Would I feel comfortable?  I must admit that the Washoe County District Attorney’s office is right on top of this for more than one reason.  They are affected by many of these liens as well.  In the smaller counties, if there were another tool for them to use when they can’t get their district attorneys to support that or be with them within two judicial days, I would say that we do need to review that.

 

Assemblyman Hardy:

We heard that there was an issue about a penalty.  Is there a penalty in A.B. 459 that was talked about?

 

Kathryn Burke:

I believe that you will find that the penalty is a misdemeanor.

 

Assemblyman Hardy:

So that would go to court as a misdemeanor.  I had the opportunity to talk to Frances Deane, the recorder of Clark County.  I am wondering where the other county recorders are, and if they are buying in?  Do you have a 17 to 0 vote on this particular legislation, or is someone proposing an amendment that would give some protection of time or access to legal advice so that the recorder has access to legal advice?  Two judicial days makes me a little leery as that might not happen in the legal world.

 

Kathryn Burke:

The Washoe County Recorder’s Office and Washoe County itself do not have an amendment at this time.  I don’t see why the Committee couldn’t amend that for everyone to be able to feel comfortable with that.  As far as how many recorders are on board, I hope that I expressed very clearly the concerns of the recorders.  It is not that they are not willing to do the job; it is that the consequences of the job are of great concern based on past history of recorders already taking abuse for this.  That is their only objection. 

 

We do share the information as to how many fraudulent documents are coming in, who they are against, county to county.  I have one from Churchill County with me where they have placed one of these fictitious liens against an employee of Washoe County, because she was doing her job in the Payroll Department garnishing the wages of an employee who had not paid his IRS bill.  The person went out to Churchill County to be able to record these fictitious liens against her.  I was then provided that information from the Churchill County Recorder.  I have been provided information from Lyon County on Judge Gregg Zive’s case.  He actually had to go to court.  You see, it is going to cost you to get yourself back out of this, and you don’t even know that it is there.  The recorders do know what is there; we just don’t have a tool to stop it. 

 

[Kathryn Burke continues.]  I guess somewhere, somehow, someone needs to start this.  If it has to be at the level where it enters the system, I believe that’s where we need to look first.  Is it going to be easy?  I am not going to say that it will be easy.  Will we miss a few?  Probably.  But we need to get started.

 

Assemblyman McCleary:

If someone had a dispute with me and wanted to put a lien against my property because I didn’t pay a bill, they would have to go through the courts to do that.  Is that correct?

 

Kathryn Burke:

If they bring in a document that looks like a lien, is acknowledged, and is a document that can be recorded, we would record that document.  Yes, anyone could put a lien against you.

 

Assemblyman McCleary:

Legally, are you supposed to go to court to do that?

 

Kathryn Burke:

I am going to defer this to Legal Counsel, Kristin Erickson.

 

Kristin Erickson:

Although I am a criminal attorney and not a civil attorney, it is my understanding that there would have to be some due process and be noticed to you that there is a lien that is going to be filed against you.

 

Assemblyman McCleary:

If that were true, then the plaintiff would take that document from court, go to the recorder, and state that he needed to record this.  Is that correct?

 

[Ms. Burke answered in the affirmative.  Mr. McCleary continued.]  Is there some way that we could work it so that the court would automatically refer this document to the recorder and take the plaintiff out of the picture so that there was no way for the documents to be brought to you that were frivolous?

Kathryn Burke:

I think the recorders would really like to go for that.  Do I think that can happen?  No.  We also cannot refuse to record.  Just because that would be the legal way to do something, the recorder really does not determine the legality of every single document.  If you deeded your property to me, and you transposed the lot number on it, is that a legal deed?  If I deeded Kristin’s property to you, it is recordable, but does that make it legal?  That is the “catch-22” that we are in.  When someone comes in with a document, we have no tool to refuse to record it.  There are other documents other than these, I’m quite sure, that would have to end up going to court, but the ones that are blatant are the ones that recorders would be allowed to refuse to record.

 

Assemblyman Goicoechea:

As I really look at this, it truly is enabling.  The recorders do not have to refuse to record the documents.  Those who were not comfortable refusing to record documents would be allowed to go ahead and record; those who felt they had the expertise or the support from others to ensure their position, they could, in fact, refuse to record certain documents.  I support A.B. 459 at this time.

 

Terry McHenry, Nevada Association of Land Surveyors:

I have proposed an amendment to this bill (Exhibit J).  The impetus behind this bill, A.B. 459, and the concerns that are attempting to be addressed here we fully support.  We have no problems with it whatsoever.  We do have one concern, however.  The members of our profession, the land surveyors, generally have a very close relationship with the recorders in the counties in which we practice.  The office of the recorder is something we interface with very frequently.

 

The concern that we have with this bill is the way the language is structured.  There are members of our profession who feel there could be an interpretation that would preclude some of the processes that we are required, by statute, to follow in serving our clients.  We are proposing an amendment that adds a new subsection that essentially exempts members of our profession from the requirements of this bill and allows us to record the documents that we are customarily recording and are required by statute to record. 

 

Again, I want to emphasize the impetus behind A.B. 459 we fully support.  I might also add that we would be certainly willing to work with the makers of this bill on any amendments or amendment adjustments that might need to be made to satisfy our concerns.

 

Chairman Manendo:

I would hurry if I were you.  We have a deadline that needs to be met. 

 

Assemblywoman Pierce:

How would the recorder know that this was a professional land surveyor?  Is there some kind of identification?

 

Terry McHenry:

There are several ways.  Many members of our profession work very closely with our recorders; often we are on a first name basis because they know us.  We carry cards of registration so that if a member of the recorder’s staff were to ask, we can show them.  Many of the documents, maps aside, that we submit for recording are documents that are only prepared by a licensed land surveyor, as stated by statute.

 

Chairman Manendo:

We are closing the hearing on Assembly Bill 459, and there has been a request to take a recess before hearing the last bill on our agenda.  We are in recess.

 

Chairman Manendo:

Come to order.  For the record, Assembly Bill 134 has been withdrawn.  Next on the agenda is Assembly Bill 456 proposed by the Vice Chairman of this Committee, Chairman of the Education Committee, Speaker Pro Tempore, and our distinguished colleague from Assembly District No. 6, Mr. Wendell Williams.

 

Assembly Bill 456:  Revises provisions relating to employment of certain persons in connection with redevelopment projects. (BDR 22-1295)

 

Wendell Williams, Assemblyman, Assembly District No. 6:

It is my privilege to present this bill to you today, and I want to thank the Committee for allowing me the opportunity to introduce this worthy bill.  Assembly Bill 456 makes a minor but significant change to existing redevelopment law.  Currently, our redevelopment law is well-intentioned but often suffers from a lack of follow-through.  This bill is designed to correct those deficiencies and to make redevelopment plans more meaningful to the community and, especially, to the residential redevelopment areas.

 

Under current law, the former plans redevelopment plans are only required if deemed appropriate.  Under the bill, every redevelopment proposal would be required to include an employment plan unless the redevelopment agency makes specific findings that an employment plan is not appropriate.  The language is found on page 2, lines 11 through 15.  This turns the tables so that employment plans are assumed to be necessary unless proven otherwise, unless there are specific reasons articulated by the redevelopment agency as to why an employment plan is not appropriate in that instance.

[Assemblyman Williams continues his testimony on A.B. 456.]  Furthermore, today, our redevelopment agency “may” require a tenant or a purchaser or a property owner within a redevelopment area to implement an employment plan.  Under this particular bill, the “may” becomes a “shall,” so that implementation of an employment plan is mandatory for the purchaser and tenant.  This information is on page 2, lines 8 through 10.

 

Similarly, current law provides that the obligations of a purchaser of redevelopment property may be faced with covenants or conditions placed on the land.  Through Assembly Bill 456, the employment plan must be a condition that runs with the land.  This language is found on page 2, lines 34 through 38. 

 

Finally, the bill adds a ninth finding to the items required for adoption of a redevelopment plan.  The redevelopment plan is to include an adequate employment plan.  This is on page 3, lines 25 through 27.

 

In case you are wondering what an employment plan is, it is a plan that describes how employers within a redevelopment area are going to hire people living within that area that are either economically disadvantaged, physically disabled, women, veterans, or racial minorities.

 

I am confident that you will agree that redevelopment plans and projects have a special obligation to make an effort to hire disadvantaged persons, since the whole point of redevelopment is to improve the community and the local economy.

 

That is what A.B. 456 is all about, making sure that redevelopment projects do more than just rebuild buildings.  It should make sure that residents are given a chance to rebuild themselves as well.  There is no better way to do that than to implement an employment plan and make sure that the plan sticks.

 

Assemblyman Hardy:

Is there a population cap that would apply to a county or a city?  I am thinking of the little city from which I come that also has wonderful people in it but not as many as where you live.  The little projects that we do in redevelopment are sometimes miniscule compared to some that you are familiar with.  I can see it problematic trying to come up with people who would have to be imported to try to do something.  That would be my concern. 

Assemblyman Williams:

This particular bill makes allowances for those situations.  The employment plans are only mandatory if the agency, the city’s redevelopment agency or the city’s office for redevelopment, were to deem that such a plan would be necessary.  The bill allows those particular entities the ability to determine if, in fact, this type of plan would be necessary for that particular project.  Regardless of the population of the city or the town, the agency which governs the redevelopment areas and projects would have the ability and the authority to deem that the employment plan in those cases would or would not be necessary.

 

Assemblyman Hardy:

Is that per project or is that per plan?

 

Assemblyman Williams:

Per project.  If a project is presented a city or a town, the residents in the redevelopment area can approach the town or the city in reference to an employment plan; that particular plan could be reviewed by the city and be deemed unnecessary in that particular case.  It would not be a clean and broad brush for every plan.  It would give the residents the opportunity to approach; it would also give the town the opportunity to deny.  In many projects, it just would not be feasible.  There will be projects that may come in that will lead to only hiring one or two people.  An employment plan, in that case, would be entirely unnecessary.  The agency would not be bound by this particular law to determine what would be feasible.  In cases like that, it would hurt the redevelopment area to hold it up for an employment plan.

 

Greg Salter, Special Assistant to the Assistant City Manager, Sparks:

[Introduces himself stating that he works in the redevelopment department of the City of Sparks.]  Part of my duties with the City of Sparks in the Community Development Department is to help put together redevelopment deals.  I’m here to ask you not to pass A.B. 456, because of the devastating effect it will have on financing of redevelopment projects.  Let me explain how the bill would work.

 

A redevelopment agency wakes up one morning and sees a couple of city blocks in the downtown area of any city.  The agency decides it’s time to clean up that property, take out the blight, eliminate the vacant buildings, clean it up environmentally, and redevelop it so it becomes, not only a vibrant part of the community, but, also, produces more property tax revenue.  The agency goes out and acquires the land at fair market value, whether it does so through condemnation or market purchases.  The agency clears the land, takes down the buildings, digs up the leaking underground storage tanks, cleans it up environmentally, and prepares it for future development. 

 

[Mr. Salter continues his testimony.]  The agency will then offer to sell the land to a developer for maybe a couple of dollars per square foot under the fair market price.  A developer will take a look at it and say, “At that price, I can make a deal work.  I can build, for example, a $20 million office building on that land.  I can make it work for that price.” 

 

The city thinks, for $20 million, the property will generate about $180,000 per year in new property tax revenue, and it is going to revitalize downtown, because there will be hundreds of people working in that building.  The city says that this is a great deal.  However, we need to talk a little about an employment plan.  We have A.B. 456, which says, “Mr. Developer, since the city is going to be selling you the land, we have to talk about an employment plan.  We have to estimate the employment opportunity that this building will generate, and we have to develop a plan which calls for the hiring of economically disadvantaged people, whatever that means, as it’s not defined, the physically handicapped people, which is not defined, veterans, women, and racial minorities, which might be defined in the context of all of the affirmative action legislation we have.  But, Mr. Developer, you need to tell us how many of those people you are going to hire, because that has to be in the plan.”

 

The developer says that he doesn’t know what kind of employment opportunities his building is going to create until he has his tenant mix, until he knows what his tenants are like. 

 

“Well, let’s work a percentage.  Let’s make a deal.  Let’s say, Mr. Developer, of all the people who will be hired in this brand new office building you are going to build, 20 percent have to be economically disadvantaged, 20 percent have to be physically handicapped, 20 percent must be veterans, 20 percent must be women, and 20 percent must be minorities.

 

The developer says that he will not be doing the hiring; he is going to be leasing it out.  He wants to do this deal.  He wants to make his profit, so he says, “Let’s do it.”

 

So they enter into this plan.  It becomes embedded in the deed from the agency to the developer.  Under A.B. 456, it becomes a covenant running with the land forever.  And, under A.B. 456, if the plan is violated, the land automatically reverts back to the agency.  That’s called “the possibility of reversion.”

 

[Greg Salter continues.]  The developer says, “Okay, I’m leasing the property out.  I am going to get out of this deal after the building is built anyway.  Let’s go.”  The developer now goes down to Foolish National Bank and asks to borrow $20 million to build his building.  The bank says, “Okay, we will lend you the $20 million.  We need a deed of trust on the land and the building.”

 

The developer grants a deed of trust, and the building gets built, a $20 million office building.  The developer leases out the building to 100 tenants, mostly mom-and-pop small office operations.  Everything is going fine.  The new property taxes have been generated, downtown has been revitalized, and everything is fine. 

 

Under the bill, however, the deed of trust that has been put on by Foolish National Bank is subject to the “possibility of reversion.”  Under the law of Nevada, if the property does revert back to the agency, it reverts back free and clear of the lien in the deed of trust.

 

Ten years later, the redevelopment of the downtown area has been accomplished, the redevelopment agency may have already sunset by now, and the city takes over the project and decides to do an audit.  The city does the audit and finds out that 20 percent of the people hired in that building are not economically disadvantaged.  So, the city talks to the developer about violating this employment plan, which is a covenant running with the land.  The developer says he has not hired anybody himself.  He just leases the property out, and he has provisions in the lease agreements about the covenant running with the leases.  He guesses he will evict his tenants.  They haven’t lived up to the employment plan as stated in their lease agreements.

 

The building goes dark.  Twenty percent of the employees in the building still haven’t been hired to meet the covenant.  Twenty percent are not economically disadvantaged.  The city invokes its right of inversion.  It takes the land back.  The developer has lost his equity, Foolish National Bank has lost its deed of trust taking a $10 million to $20 million loss on the project because the developer is a single asset entity and probably will go Chapter 11.  The property that reverted back to the city is free and clear of all liens, Foolish National Bank has lost $10 million, and the developer has lost his equity.  Since the property reverted back to the city, it is not only vacant, it is no longer on the property tax rolls.  So what have we accomplished?

 

What the city may try to do, of course, would be to take over the building and try to find another developer.  That other developer will have to buy the land from the city, subject to that covenant running with the land with the possibility of reversion.  The developer would see what had happened to developer number one, the lender saw what happened to Foolish National Bank, so what are the odds that the city will be able to revitalize that building?

 

[Greg Salter continues.]  A.B. 456 is well-intentioned.  The bill has a good goal, but the remedy is extreme.  It amounts to curing the cancer but killing the patient.

 

Assemblywoman Pierce:

Do you have any actual evidence that a scenario like that has ever taken place?

 

Greg Salter:

No.  The bill has some legal flaws, but its terror is mostly in its practical effect.  There is a pretty good possibility that the bill, as it’s written, will not be enforced by the courts, because of the nature of it under the common law and how the common law deals with what is called “real covenants running with the land.”  Covenants running with the land, in order to be enforced by the courts, have to touch and concern the land.  Applying an affirmative action plan to tenants on the land is not the kind of thing that “touches and concerns.”  Probably it has not happened because courts would not likely enforce the covenant.  There is also the problem that the city will face.  If the city does take the land back, is that a “taking of property” without compensation?  This problem hasn’t arisen, as this kind of contract hasn’t been enacted or hasn’t been enforced by the courts.

 

Assemblywoman Pierce:

It seems that the part about requiring a plan, unless the agency makes specific findings that an employment plan would not be appropriate for that particular redevelopment project, would cover the scenario you just outlined.

 

Greg Salter:

Maybe not.  The scenario I outlined was about an office building that was going to employ many people.  As Vice Chairman Assemblyman Williams mentioned a minute ago, if you have a little plan where only one or two people are going to be hired, then it probably isn’t appropriate.  But, what better project to require affirmative action than an office building in a downtown project that is going to hire hundreds and hundreds of people.  Let’s make sure that the bill would say that some of those people are economically disadvantaged.  It probably is not the kind of plan that is disadvantageous unless the city council determines that they can’t get financing with a covenant running with the land.  We would then have emasculated the whole purpose of the bill, or the whole remedy purpose, I should say.  The employment plan purpose can still be accomplished.  It is just that the remedy is killing the patient.

 

Assemblywoman Pierce:

Is there a possibility that a city council would be able to think ahead, as you have, or that someone on the city council would be as smart as you?

 

Greg Salter:

Sure.  They are elected.

 

Assemblywoman Pierce:

I am not so nervous about your scenario as you would have me be. 

 

Assemblyman Williams:

I have served in the Legislature for 18 years, and I have been on this Committee for a long time.  That is the most outlandish story I have ever heard in my life.  That has nothing to do with this bill.  This bill has nothing to do with affirmative action.  This legislation was actually put into place in 1993 by Assemblyman Arberry and me.  This has already been working.  Cities have already been using this legislation.  This legislation is only to make sure that folks who make promises to city councils and agencies follow through on those promises.

 

A city, for instance the City of Las Vegas, who just built a garage downtown, would use this bill to go out and get bids to clear the land and do the other things Mr. Salter talked about, and then go get a contractor.  They would not even attempt to apply this kind of language to that type of scenario.  This bill applies to the 61 acres in downtown Las Vegas that is being developed.  The city has already taken what this law does and what’s on the books already under this law, and has used it and found no problems with it.

 

The previous speaker, Mr. Salter, talked about scenarios of what can happen.  We have been using this since 1993.  This only locks into place things like promises people make.  If a piece of land in a redevelopment area was available, and a company came in and stated it would like to build a mall on this particular piece of property, because it is located in the redevelopment area and there were incentives available to those contractors, say a nice price on the land, to make them want to relocate in that area, those are the types of things we are talking about that could revert back to the agency if, in fact, the promises were made but not kept.  The city could look at building a bank building or office building as the previous speaker talked about. 

 

In this particular situation, we own all of this.  Let’s just get someone to build it.  We don’t need to look at an employment plan or anything like that.  Under that scenario, you wouldn’t have to.  This only applies in depressed areas that have been identified.  It would be an enhancement to the residents and to the city if, in fact, a person relocated and started to build in that area.  Then those developers would receive those incentives if they promised to come in. 

 

[Assemblyman Williams continues.]  This legislation came about in 1993 because of a situation with Valley Foods in Las Vegas.  Valley Foods went to the City of Las Vegas and stated it would like to locate in west Las Vegas and build a warehouse.  “If you give us this land extremely cheap and give the other things on a long list, what we will do is to hire a few people from the neighborhood.  So, not only will this land, that has been vacant, have a warehouse on it, we will hire people from that neighborhood.  What did Valley Foods do?  They hired one person part time.  So what happens is that the city could have used the land to build some other project there that would have been more of an incentive and enhancement to the people in the area.  That is what brought about the law in 1993. 

 

This particular bill today only enhances that.  If a city were looking at building an office building or a garage themselves and getting a contractor to do so, then they wouldn’t even have to deal with this law.  They could go out and do it on their own.  Only when they are being approached by an outside developer would this particular law come into play.  Even then, under this law, the agency would have the ability to say that it chose not to have an employment plan in place.  They could choose not to use Assembly Bill 456, because they just want to do what they have to do.  “We deem this not to be necessary in this particular case.” 

 

There are cases where developers do want to come in and develop some land and receive incentives for doing so.  They didn’t locate in a depressed area by chance.  They want those incentives.  If they agree to collect those incentives and they agree to an employment plan, then everyone is happy.  If they are not sure about having such a plan, the city has the right to deem A.B. 456 unnecessary. 

 

Assemblywoman Pierce asked the previous speaker if he had ever heard of a scenario like the one he described.  The answer was “No.”  We could take any law on the books, current, past, or future, and find some farfetched scenario to apply to it to make some folks not look at it as it is.  This has nothing to do with what Mr. Salter was talking about.

 

Chairman Manendo:

For the record, only the City of Sparks and the City of North Las Vegas signed up in opposition to the bill.

Kimberly J. McDonald:

The City of North Las Vegas is not in opposition to the bill.  The record on the sign-in sheet is in error.  We are not in opposition.

 

Chairman Manendo:

We will close the hearing on Assembly Bill 456 and bring it back to the Committee.  What is the pleasure of the Committee?

 

ASSEMBLYWOMAN KOIVISTO MOVED TO DO PASS ASSEMBLY BILL 456.

 

ASSEMBLYWOMAN PIERCE SECONDED THE MOTION.

 

Assemblyman Hardy:

I am waiting to see the ramifications of this bill as to the smaller entities.  I would have to vote “nay” but would reserve the right to change my vote on the Floor.

 

Assemblyman Knecht:

That is my plan, also.  Carson City has redevelopment plans in the making, and I want to check with the Carson City folks to see whether this affects them, and whether they are comfortable with it.  I will be voting “nay,” subject to changing my vote on the Floor depending on what I find out from them.

 

Chairman Manendo:

I will place the question on Assembly Bill 456.  It is duly noted that Mr. Hardy and Mr. Knecht have concerns. 

 

THE MOTION CARRIED WITH ASSEMBLYMAN HARDY AND ASSEMBLYMAN KNECHT VOTING NO.  (Assemblyman Christensen was not present for the vote.)

 

Mr. Williams, will you handle A.B. 456 on the Floor?  [Mr. Williams gives an affirmative nod of his head.]

 

Committee, please turn to Assembly Bill 332 for consideration during the work session.  Ms. Scholley, is this the same bill as we heard yesterday?  [Ms. Scholley affirms that it is.]

Assembly Bill 332:  Makes various changes relating to service animals. (BDR 38-1)

 

Susan Scholley, Research Analyst, Committee on Government Affairs:

Assembly Bill 332 was a bill sponsored by Assemblyman Arberry.  It proposes a number of amendments relating to service animals and service animals in training.  These measures are to enhance protection for such animals and their trainers and owners and, also, to clarify the rights afforded persons with disabilities who use service animals (Exhibit K).

 

At the hearing on the bill, there were numerous amendments proposed to the bill.  Persons testifying and requesting amendments were Myla Florence, Director of the Department of Employment, Training, and Rehabilitation; Linda Lueck, with the Governor’s Committee on Employment of People with Disabilities; and Warren Wish, Carson City Guide Dog Club.  Ms. Lueck agreed to submit proposed amendments in conjunction with the Nevada Disability and Advocacy Center.  A mock-up of the amendments that were submitted by the Governor’s Committee on Employment of People with Disabilities in conjunction with the Nevada Disability and Advocacy Center is attached.

 

I will remind you that at the hearing there was universal opposition to the requirement for fees and licensing for trainers and service animals.  Fiscal impact on the bill notes that there is impact for both the state and local governments.  However, the removal of the licensing portions of the bill would effectively eliminate the fiscal note, which related to personnel to administer the licensing program.  Removal of the fee requirements would eliminate the requirement for the two-thirds majority vote. 

 

Please turn to page 1.  Some of the issues are a little in transition.  I will explain as we go through the bill.  In Section 2, the proposed definition was to redefine service animal in training to incorporate a broader definition of disability.

 

Section 3 was a proposal by the amendment proponents to include a definition of disability.  This definition is out of the Americans with Disabilities Act, the federal law, and, although initially there was some reluctance to incorporate a definition where previously there had been none, and with some concerns with conflicts elsewhere in the statutes, I believe that, at this time, the recommendation to omit it has been withdrawn.

 

Turning to page 2, lines 18 and 19, there was a proposal to delete the “other than” and specifically include “housing accommodations” within the prescription for charging additional surcharges, deposits, or fees.  It was pointed out that Section 7 of the bill addresses the same issue and the two sections appear to be inconsistent.  On lines 34 and 35, there was a proposal to include other animals, other than dogs, and that it would be illegal for an owner to interfere with service animals.

 

Assemblyman Hardy:

Does this apply to fish or other animals or just service animals?  Could we put in “or other service animals that he owns?” 

 

Susan Scholley:

No.  The reference to “dog or other animal” would be, if I were a dog owner or had a wolf as a pet or a feral cat, and I was walking down the street past a person with a service animal, and my animals attacked the service animal, that is what that is addressing.  It wouldn’t be limited to a person whose dog attacks a service animal; if a person had another animal with them that attacked a service animal, they would be liable.

 

Turning to page 3, the proponents of the amendment asked to delete those sections 3 and 4 starting at line 32.  Section 3 was recommended for deletion because it was felt that, by proposing the setting of regulations, it may encourage the owner of a housing accommodation or his agent to do so unnecessarily, and, while they did not feel that reasonable regulations would be inappropriate, they did not want to make that suggestion or in any way encourage the setting of unnecessary regulations.  Section 4 was recommended for deletion, as there are no federal requirements for tagging or otherwise identifying service animals or treating them differently.

 

On page 4, again at the bottom starting at line 34, Section 9 was one of the sections that were universally opposed.  It relates to DETR (Division of Employment, Training and Rehabilitation) being involved with licensing and setting fees.  That is proposed for deletion.

 

On page 5, Sections 11, 12, and 13 are proposed for deletion as being obsolete definitions and are now included in the broader definition of service animals.  Section 14 is an update to the definition of “service animal.”  Section 15 is proposed for deletion because there is no longer a need for this section, there is no need to distinguish between schools for different types of service dogs and, again, seems to be outdated. 

 

Turning to page 6, I did not try to renumber the sections after this, so you will see a Section “xx” on line 34.  This is a new section that is proposed to repeal NRS 426.515 by the proponents of the amendments.  Again, it is a section that is considered to be outdated and archaic.

 

[Susan Scholley continues.]  Section 16 on page 7 suffers from the same problem and is proposed for deletion, because it is believed to be archaic and outdated.  On the bottom of page 7, Section 18 is proposed for amendment to broaden the applicability of this section to all disabled persons, not just blind persons.

 

Turning to Section 19, page 8, the proponents have proposed to delete the word “companionship” from the definition of “pet” pointing out that, in some instances, persons may have a disability that does involve the need of a pet for companionship, and, because of that, this definition, as written, is too broad.  On line 21, the proponents have added a service animal in training to the exclusions in the definition of “pet.”

 

On page 9, there are a number of amendments that are again consistent with the broadening of the definition of disability and also include service animals in training where appropriate.

 

On page 10, line 16, there is a proposed amendment, which adds a prohibition against separating a disabled person from the party by whom he or she may be accompanied in addition to the service animal.

 

Skipping now to page 12, this is an area that remains in flux.  There was testimony at the hearing to look at Section 26, lines 39 and 40.  The proponents have suggested including a specific reference to airlines operating in or traveling through the state due to a concern that service animals in training were not being permitted on certain airlines.  The proposed amendments recognize that they [the proponents] believe it may be unenforceable against airlines operating interstate travel, but they asked to include it to make a statement.  The Legal Division would like more time to determine whether, in fact, we do have some state authority in this area.  Although the text box indicates that the Committee should consider omitting it, in lieu of that, I would propose that the Committee give direction to Legal Counsel to continue to research in this area and, if it is appropriate, and there is not a total preemption to consider, to go ahead and include the requested language.  If Legal Counsel determines that there is a full preemption of the state’s authority in this area, then it is recommended to not be included.

 

On page 13, again, it’s the same issue having to do with airlines operating in and traveling through the state, on lines 9 and 10.  The issue comes up again on page 14, lines 2, 3, and 16.  Those would all be subject to the same caveat.

 

On page 15, Section 29 is proposed for deletion consistent with the earlier removal of Section 9 and DETR’s role in regulating service animal trainers.  In Section 30, since there is no longer a need for DETR to adopt regulations, it was suggested by the proponents to move up the effective date of the bill to the more typical July 1, 2003.

 

Chairman Manendo:

As always, Ms. Scholley, thank you for walking us through the work session document.  This required much hard work and many hours.

 

Assemblyman McCleary:

My chief concern was about the fees for licensing.  That was abolished in the proposed amendment.  Basically, it enhances the penalty for people who commit crimes against these animals.  I just wanted to be certain I understood those issues correctly.

 

Chairman Manendo:

What is the pleasure of the Committee?

 

ASSEMBLYWOMAN KOIVISTO MOVED TO AMEND AND DO PASS ASSEMBLY BILL 332 WITH THE DIRECTION TO THE COMMITTEE’S LEGAL COUNSEL TO CONTINUE HER RESEARCH ON WHETHER THE STATE HAS ANY AUTHORITY OVER AIRLINES THAT REFUSE TO ALLOW SERVICE DOGS IN TRAINING TO FLY WITH THEM.  THAT WOULD DETERMINE THE APPROPRIATENESS OF AN AMENDMENT TO SECTION 26.

 

ASSEMBLYMAN KNECHT SECONDED THE MOTION.

 

THE MOTION PASSED.  (Assemblyman Christensen was not present for the vote.)

 

Chairman Manendo:

Thank you, Committee.  Good work.  This is a hardworking Committee.  We are adjourned [at 10:58 a.m.] 

RESPECTFULLY SUBMITTED:

 

                                                           

Nancy Haywood

Transcribing Secretary

APPROVED BY:

 

                                                                                         

Assemblyman Mark Manendo, Chairman

DATE: