MINUTES OF THE meeting
of the
ASSEMBLY Committee on Government Affairs
Subcommittee
Seventy-Second Session
April 4, 2003
The Committee on Government Affairs Subcommittee was called to order at 7:19 a.m., on Friday, April 4, 2003. Chairman Kelvin Atkinson 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 Subcommittee are presented in the traditional legislative style.
SUBCOMMITTEE MEMBERS PRESENT:
Mr. Kelvin Atkinson, Chairman
Mr. Chad Christensen
Mr. Bob McCleary
SUBCOMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
Mr. Lynn Hettrick
STAFF MEMBERS PRESENT:
Susan Scholley, Committee Policy Analyst
Eileen O'Grady, Committee Counsel
Rosemary Zienter, Committee Secretary
OTHERS PRESENT:
John Garvin, Co-Chairperson, Douglas County Sustainable Initiative Committee
Cheryl Blomstrom, Citizen
Scott Doyle, Douglas County District Attorney
Jim Slade, Citizen, and Member of the Douglas County Sustainable Growth Initiative Committee
Ralph Elvik, Citizen
Carole Thompson, Douglas County Building Industry Association
Good morning. We’re going to start this hearing so that we can be ready for Government Affairs at 8 o’clock. Madam Secretary, will you please call the roll. [Roll taken.]
Assembly Bill 428: Imposes certain requirements relating to adoption or amendment of master plan of county or city. (BDR 22-1275)
We are here this morning as a subcommittee for A.B. 428. I know we’ve already heard a lot of testimony concerning this bill, but it was put into a subcommittee so we could discuss some issues and try to come to an agreement.
Instead of going over everything all over again, I would like to give Assemblyman Hettrick the opportunity to share any new information with us. Then we’ll hear from other people who have signed in to speak.
Lynn Hettrick, Assembly District No. 39, Carson City (part), Douglas County, and Washoe County (part):
I have not had anyone propose any language to me to change anything. I think the opposition is either yes or no. It’s not anything in between. I’ve not had anybody propose language that amends this in a fashion that they would find acceptable. I don’t know what to tell you, except to listen to the opposite point of view, and see what we decide to do. I’ll comment after they make their comments.
Chairman Atkinson:
We have four people signed in, and I wanted to give them the opportunity to speak first. Only one person has signed in to speak, and I’m going to give that person the first opportunity. Afterwards, we’ll give more people the opportunity to speak. I want to let everyone know that the Assembly Committee on Government Affairs meets in this room at 8 o’clock, so we’d like to be finished before then. Please keep your comments short and just hit on your points. We’d appreciate that. At this time, I’d like to call John Garvin up and give him the opportunity to speak.
John Garvin, Co-Chairperson, Douglas County Sustainable Initiative Committee:
[Introduced himself.] [A copy of Mr. Garvin’s testimony is attached as Exhibit C.] I’d like to point out that Nevada Revised Statutes (NRS) 278.210, and not NRS 278.220, is probably the proper place for any proposed change in procedure referred to in Section 1 of A.B. 428. To require the governing body to hold a hearing and make findings on proposed changes in the master plan without first having the planning commission perform its function under NRS 278.210, is putting the cart before the horse. For example, the required finding setting forth the need or rationale for a change or amendment in the master plan is a legitimate function of the planning commission, which the governing body may or may not approve, change, or turn down at its hearing.
Subsection 4 of NRS 278.220 confirms the essential truth of this process where it states that any proposed changes by the governing body as to what is recommended by the planning commission must first be referred back to the planning commission.
NRS 278.210, regarding the planning commission, already requires a public hearing process by the planning commission who, inferentially, must justify its recommendations to the governing body at that hearing. The same is true for the governing body under NRS 278.220 as part of its adoption or approval procedure. The question is, why do you need to enact Section 1 when findings are already inherent in the process?
This illustrates that the sole purpose of the bill is a bald-faced attempt to impose, impede, or otherwise restrict the use of the initiative process in the area of amending the master plan. As we pointed out before, article 19, Section 4, of the Nevada Constitution limits the Legislature’s power to amend the initiative procedure under NRS Chapter 295 to facilitate the process, not impede it. The term “facilitate” means to make easier. A.B. 428 imposes upon the political process burdensome and costly procedures for the citizens to make findings that the backers of this bill can then use to challenge the initiative measure in court before the election. What is the level of evidence required to support the citizen findings? A.B. 428 is constitutionally suspect in these respects.
The historical approach of a political campaign remains the best approach for a full disclosure of the merits, or lack of merit, of any initiative measure. It is an adversarial process. In our case, it worked well for both sides. Senator Amodei even moderated a town hall meeting wherein our Slow Growth Initiative [Douglas County Sustainable Growth Initiative] was vigorously debated on television by both sides. Further, the local District Attorney’s function of approving or disapproving valid arguments also operates to exclude questionable assertions. Our committee had a four-hour session with the DA [District Attorney] where it was a process by which certain arguments could not be made because of factual inadequacy where it wasn’t phrased right in terms of an opinion. Remember, voters are not stupid. They turn down many initiative proposals. The system works. Please don’t tinker with NRS Chapter 295.
[John Garvin continued.] Lastly, this is the first instance in which NRS Chapter 295 is being amended to set forth substantive law on a narrow subject matter. Why is that fact significant? Because, by hobbling the initiative process in this one narrow area—that is, proposed changes to the master plan versus all other areas of the law that can be the subject of an initiative process—a denial of equal protection of the law likely results. That would be unconstitutional under both the federal and state constitutions [Constitution of the United States of America and Constitution of the State of Nevada].
I would ask that you report back to your Assembly Committee on Government Affairs a recommendation of a “no” vote on A.B. 428 or, alternatively, strike out the sections pertaining to the initiative process in your NRS Chapter 295.
Cheryl Blomstrom, Citizen:
I am a citizen in Douglas County, and one of those very special interests that you’ve heard about. I’m a citizen, I’m a taxpayer, and I’m a mom in Douglas County. I’m here today to speak for the people who voted opposed to that particular initiative.
Mr. Garvin makes a very good point. The voters are very intelligent. I think that they best thing we can do for the voters is give them all the information that is out there, including all the findings that Mr. Hettrick is asking for in this bill A.B. 428, so that they can make intelligent, informed decisions. More information does not damage this process. More information means that the voters have more to weigh, more to look at, more to examine, and more to inform their decisions.
I would loved to have had more information before I voted on this initiative. There was rhetoric on both sides. There was a lot of hyperbole. There was a lot of anecdotal information being thrown around. There wasn’t a lot of fact. I did a lot of research myself, because that’s the business I’m in. I looked into the initiative process. I looked into the way the Slow Growth Initiative folks [Douglas County Sustainable Growth Initiative Committee] were planning to impact my county, and I made an informed decision not to support that initiative, based on a number of reasons—private property rights being first and foremost among them. I already own a home there, I was already living there, I already pay taxes there, but there are a lot of other families who will need a home in Douglas County at some point in the future.
[Cheryl Blomstrom continued.] As I understand, it is our intention in the county to develop additional industrial and commercial resources. Those folks need to live somewhere. If we are nothing but an employer, and we farm all of our residential properties out to other counties, we have a commuting problem. We also have other social problems related to that that I don’t want to see in my county. I voted no, and I’m here to support you today, not representing a client, and not here for anybody except myself, my kids, my husband, and my community.
Assemblyman McCleary:
You said the public needs to be informed. In a ballot initiative, isn’t there a pro and a con statement on the ballot?
Cheryl Blomstrom:
I found the ballot statements lacking on both sides. There was not any kind of numbers or evidence. I wanted to see, “This is what it means. This is our water resource situation, and here is where you can go to find more information.” I didn’t find that on either side of the ballot.
Assemblyman McCleary:
I’m in the Assembly Committee on Elections, Procedures, and Ethics, and I understand that the county clerk has to find people opposed to and people for an initiative, and they allow them to write their side of it. If they didn’t do a good job, I apologize, but to me it seems that the arguments are on the ballot.
Scott Doyle, Douglas County District Attorney:
[Introduced himself.] In response to the full Committee’s hearing the day this was put into this Subcommittee, I took it upon myself to prepare some suggested amendments [Exhibit D] that I transmitted to Assemblyman Hettrick. I am providing those to the Subcommittee this morning. What I’m suggesting is amendments to Sections 1, 3, 4, 6, and 8 in the bill [A.B. 428].
In Section 1, I’m suggesting, with respect to the finding in subsection 3, that a consistency concept be put in that finding instead of the terms “anticipated effect.” With respect to an amendment that is proposed by the government or proposed through the initiative process that would limit the number of building permits, findings of consistency should be tied to three statutory elements in the master plan. This is the type of analysis that the government would go through.
[Scott Doyle continued.] Two examples that the Committee could consider on this point are the jurisdictions of Carson City and Boulder City. Both of them have building permit limitation systems, and these would be the type of consistency findings that they would make in the administration of that ordinance. This is something that would be consistent with practices already in the state, and would make the practice uniform throughout the state.
In Sections 3 and 4, I am proposing that, rather than having the governing body hold a public hearing, they facilitate that type of a hearing as part of the information dissemination process in the initiative and referendum procedures. The reason I’m recommending this is, rather than having the governing body hold the hearing, that they merely provide the venue and do the other actions to facilitate the conduct of that hearing by the proponents of the particular petition. Referendums and initiatives are exercises in direct democracy, and we should not be investing the governing body into that direct democracy process. They should assist the citizens, but they should not take over the hearing process. Things like providing the venue for that type of a hearing would be good, but having the governing body conduct the hearing probably is something that may step over the line and invests the governing body into something that is a citizens’ participatory process.
In Sections 3 and 4, I’m suggesting that the word “hold” be deleted, and the word “facilitate” be put in, and that is consistent with the terminology and the Nevada State Constitution, which might address some of the concerns raised by Mr. Garvin earlier.
The amendments in Sections 6 and 8 are really consistency amendments, and I’ve suggested possible text for Section 6, and that’s in page 4 of my letter [Exhibit D]. I did not repeat it with respect to preparation of text on Section 8, but a comparable wording could be used to accomplish it there.
Douglas County is not trying to advocate a particular position on this bill. Frankly, what we are trying to do is supply some information that may be of assistance to the Committee in trying to address a multitude of concerns that are here, and make the bill workable for all 17 counties in the state, and probably a like number or greater number of incorporated cities, all of which have to deal with the administration of master plans, and all of which have citizens who may want to participate in an initiative or referendum process. We want to make it be a better dovetail of the direct petition process with the ordinary administration of a master plan through the representative democracy institutions of the planning commission and a governing body.
Jim Slade, Citizen, and Member of the Douglas County Sustainable Growth Initiative Committee:
You have received my written statement during the previous full Committee meeting. I’d just like to add a few comments. This bill [A.B. 428] is directed at our group, the Sustainable Growth Initiative Committee and the Sustainable Growth Initiative. It is an unnecessary intrusion of state law into this local issue. This is neither the time nor place to discuss the merits of our initiative. This has already been rigorously debated. If the woman who spoke earlier did not have sufficient information to make an informed decision, I don’t see how she thinks that the opportunity to possibly present findings would enlighten her any further.
On the issue of ballot arguments, I did work on the ballot arguments in favor of this initiative, and this is, of course, limited to 400 words. I know you can’t go into volumes of data to back up your initiative in that sort of situation. What is offensive about this bill is that it would require additional work, time, and expenditure of money by an initiative group that shouldn’t be required.
Let me give you an example. I hope you don’t find this offensive, but to me it’s somewhat relevant. Let’s say, for instance, the Douglas County Board of Commissioners, all white men, passed a rule that said any African-American who wished to reside in Douglas County had to come for a hearing where they may present findings on why they should be allowed to live in Douglas County. That is so offensive at its core that it should never progress anywhere, and the only person who would be called before that all-white board or any legislation that would be passed in that regard would be to discourage that person and to intimidate people. That is what this bill is designed to do.
Mr. Hettrick has not heard from us because this bill cannot be satisfied. It cannot be amended in any way that would satisfy us. Like Assemblywoman Pierce, I feel that this bill cannot be saved. Putting lipstick on this pig will not do anything for it. This bill is unwarranted, it is unnecessary, and in all likelihood, it is unconstitutional, and I urge you not to send it forward from your Committee.
Ralph Elvik, Citizen:
My name is Ralph Elvik, and I live in Douglas County. I am not here to comment on any specific items. I just wanted to comment a little on the background. In Douglas County, we had a master plan. Three aspects of that were to instigate a comprehensive capital improvements program, do a water study, and to implement a growth control. In six years, none of those things happened. Recently, they’ve introduced a water study that extended the time for four years before they’ll do anything else.
[Ralph Elvik continued.] The county officials have ignored the public. When we were generating the initiative, we considered the water situation which, a year ago, was 29,000 acre feet and the rechargeable, according to the State Engineer, was 35,000 acre feet. This last year, I don’t know the figures for that. I tried to find out; I was unable to. They aren’t ready yet. We may be approaching that water limit right now. That was one of the reasons why we instigated the initiative on growth control. Our commissioners have passed almost four dozen initiatives and most of them were for the developers and special interest groups. That’s another cause for our getting started with this. The citizens should have some control through the initiative process, and individuals who fought us are the same ones, the special interests, that are asking for this bill to be passed. I’m very opposed to it, and I think that most of the people at Douglas County, by action of their vote, are opposed to it.
Assemblyman Hettrick:
Some of the testimony you’ve heard, I think absolutely is on point to Mr. McCleary’s question. It also points out why you need to do findings. You only have 400 words in the argument. You can’t possibly present enough material in 400 words. Their very comments are why you need to have some kind of findings and opportunity to participate in a public hearing so everyone has an opportunity to know what this will really do.
The second example given was not on point. We’re talking about the person’s rights who was coming to do the petition. A petition process changes other people’s rights, and you need to have that open so people have the information to know what they’re going to do to other people’s rights as well. That’s what this is about. Why is it so uncomfortable to present information? If all you’re going to do is have the opportunity to present information, what is the problem? I don’t understand this. This is not changing the initiative process. It says they “may” present information. It says the county “will” facilitate a meeting. I agree with that language of “facilitate.” That’s all this is about. They’re making this into a constitutional threatening issue to democracy, and it’s about providing the public information.
I just don’t understand this. I think we’re taking this far beyond the reality of what this does or what it’s intended to do. It is simply a request that they do some kind of a finding. It doesn’t say they have to hire anybody. It doesn’t say they have to make any kind of a finding. If you go to the county offices and ask for the impact on various things, and say, “What do you think the impact on this would be,” there’s nothing that describes how they have to make the findings, what they have to present of the findings—nothing. It just says, “We want to facilitate a meeting and you may come and present your findings that would back up your petition.” I don’t understand the problem. I simply don’t.
Chairman Atkinson:
Mr. Doyle presented these amendments to us. Have you seen them?
Assemblyman Hettrick:
I have not seen them before this morning. He apparently sent them to my office and, frankly, Mr. Chairman, I didn’t see them last night, and they apparently weren’t delivered to me beforehand. I don’t have a problem with them. I think it’s about consistency and facilitating and trying to make the same for all the jurisdictions that do this. It makes nothing but sense.
Assemblyman Atkinson:
So, during your brief review of them, you’re okay with them?
Assemblyman Hettrick:
Yes, I am.
Assemblyman McCleary:
I’m going to take the against here. I do agree with the people that have spoken. I think there needs to be consensus when you make a master plan. If you’ve got a rebellion like this going on, obviously, there’s not consensus among the people. Holding one meeting at a town hall or county seat—the people that go to these meetings are always the same people. You’re not going to inform the public anymore that you are with the ballot initiatives. So, I’m not buying that argument. When in doubt, I trust the people. I’m very conservative that way. I will not do anything that will impede the people’s right to initiative on the ballot. That’s where I stand. I’m opposed to this; I’m opposed to the amendment.
Assemblyman Hettrick:
The only thing I’d say to you is I’m not opposed to it either, and I believe the people have a right to vote as well. They also have a right to vote at the ballot box for people who run for office and make these decisions. They did, and this last time, and they’re telling me they’re going to help me the next time in my election as well. One of the commissioners was adamantly opposed to this, to the initiative process, was very vehemently outspoken against what they were trying to do, and he lost. Do I run this because I want to challenge all these people and run up against them? No. I think this is a fairness issue. I’m not trying to take away their rights. I’m trying to see that everybody’s rights are protected. That’s all.
Assemblyman Christensen:
Is there anything else in this letter from the Douglas County District Attorney, that would be an add or a take away, or would you feel fine to just plug this into the language in the bill?
Assemblyman Hettrick:
Yes, I would. I believe the question that came up was that there was a court finding that came out after the fact, and there was an issue of making matters consistent, and I think that was the point that was made in what Mr. Doyle brought. Douglas County is neutral. They’re just trying to make this come out consistent. They don’t want to have the county hold the meeting. They want them to stay out of the meeting. I think that’s appropriate, because we don’t want to have any appearance whatsoever that the county in some way intervened in the meeting and changed the outcome.
Chairman Atkinson:
I would like to call Mr. Doyle back up. I have a question. Would the bill need to address the planning commission’s role after this?
Scott Doyle:
I believe the short answer is no. There are other procedures and provisions in Chapter 278 that prescribe the responsibilities of the planning commission. All this proposed amendment would do in the context of Assembly Bill 428 is delineate with a little bit further detail what the responsibilities of the planning commission would be in formulating their recommendation to the county commission in the case of a master plan amendment. In addition, the amendment would spell out what the governing body would have to do in the processing of a master plan amendment. By the same token, Section 1 in this amendment would also spell out what the proponents of initiative or referendum would have to find in what I term their “notice of affidavit,” that would explain the consistency of what they are proposing through direct democracy and how it is consistent with the master plan.
If the concept of this bill is to try to facilitate informing the public, there are a number of opportunities, whether the legislative action is being taken by the government or by the citizens directly, for information to be provided to the public. What I’m trying to do is make sure that all of those opportunities are used and that they are used in a way that’s consistent with the existing plan and consistent from one jurisdiction to the next.
Carole Thompson, Douglas County Building Industry Association:
[Introduced herself.] I’m a citizen of Lyon County, and this could affect Lyon County eventually, and I’m concerned about that. I’d like to alleviate Assemblyman McCleary’s concerns. The people have not voiced their opinion. The citizens of Douglas County call me every day and ask what they can do. We did not realize the impact that this initiative was going to have on the county. I think it’s important that you know that. We’re trying to make sure that this doesn’t happen again to some other county because, right now, we are in court. We are fighting. We are spending money. This money could go to the county, instead of trying to rectify a mistake that has been made. I want you to know that. That’s important.
Assemblyman McCleary:
I think there have been times when initiatives have been on the wrong side. Proposition 13—I didn’t agree with that, but that swept across the nation. I still don’t think you can impede the people’s will. If the people want to voice their opinions in error, then I have to support that error. I’m sorry.
Carole Thompson:
I would just like you to know that the initiative brought forth false information. The people that voted, voted reading false information. What we’re asking people to do that come forward with an initiative or petition is to take more responsibility in what they’re bringing forward to the public. Yes, the public voted this in, but the public did not know the real truth, and the public is the one that’s calling me now saying, “If I had known,” I would not have voted yes on Question 4. That’s my answer to you.
Assemblyman Christensen:
I wanted to ask everyone in the room a question before they leave. You mentioned the impact that the initiative would have on a county in regards to these people calling you. You’re for the bill? [Carole Thompson first answered no, but then clarified her answer to say yes, she was in support of A.B. 428.] So you do support the bill, and I support the bill also. I think that it facilitates the process for people to bring their information, to be able to do their homework, to make sure that before something goes on to an initiative, we’ve gone through the process. I just wanted to be clear on that.
Jim Slade:
I feel like I need to respond briefly to the impassioned words from Ms. Thompson. I will agree that there was a lot of misinformation during the debate in Douglas County on Question 4, the Sustainable Growth Initiative, but I would say it was all from her side, the developers and the builders. The Sustainable Growth Initiative Committee stands by all of our facts and figures, and we feel that, no matter how this ends up in the court, we feel very good about having educated the populace of Douglas County on these growth issues and changing the debate there in Douglas County. We feel that there is no need to add additional layers of state bureaucracy to this process. There is already sufficient information out there, and there’s no need for any further government intrusion.
Chairman Atkinson:
Mr. Christensen wanted to make a motion, and I wanted to let him know if he made a motion and it failed, then that’s the report that we’d have to give to the Committee. We are going to have to respond back to them. It’s up to him, or he can wait until we give our information to the Committee itself and see what to do with it. My recommendation at this point would be to have it go back to the Government Affairs Committee and report to them what has happened, and see where they want to go with it. I’ve been getting a few e-mails from some of them; it appears that they’ve been watching this Subcommittee meeting in their offices, so they know what’s going on. Mr. Hettrick, do you have a problem with that? Is that okay with you? [Mr. Hettrick indicated it was fine.]
Assemblyman McCleary:
Would it be appropriate at this time to make a motion for no recommendation?
Chairman Atkinson:
Yes.
ASSEMBLYMAN McCLEARY MOVED TO REFER A.B. 428 BACK TO THE ASSEMBLY COMMITTEE ON GOVERNMENT AFFAIRS WITHOUT RECOMMENDATION.
ASSEMBLYMAN CHRISTENSEN SECONDED THE MOTION.
THE MOTION CARRIED.
Chairman Atkinson:
So, no recommendation at this point. It will go back to the Government Affairs Committee. Any other business to come before the Subcommittee? Seeing none, hearing none, this Subcommittee is adjourned. [7:59 a.m.]
RESPECTFULLY SUBMITTED:
Pat Hughey
Transcribing Secretary
APPROVED BY:
Assemblyman Kelvin Atkinson, Chairman
DATE: