MINUTES OF THE meeting
of the
ASSEMBLY Committee on Government Affairs
Seventy-Second Session
May 1, 2003
The Committee on Government Affairswas called to order at 8:13 a.m., on Thursday, May 1, 2003. Chairman Mark Manendo presided in Room 3143 of the Legislative Building, Carson City, Nevada, and via simultaneous videoconference, in Room 4406 of the Grant Sawyer State Office Building, Las Vegas, 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. Chad Christensen
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:
None
GUEST LEGISLATORS PRESENT:
Senator Terry Care, Senate District No. 7, Clark County
STAFF MEMBERS PRESENT:
Susan Scholley, Committee Policy Analyst
Eileen O'Grady, Committee Counsel
Pat Hughey, Committee Secretary
OTHERS PRESENT:
Irene Porter, Executive Director, Southern Nevada Home Builders Association
Madelyn Shipman, Deputy District Attorney, Civil Division, Washoe County District Attorney
Patrick Smith, Legislative Advocate, Office of Administrative Services, City of Las Vegas
Mark Fiorentino, attorney, representing the Focus Property Group and other developers who practice and present projects to the local governments in Clark County
Bob Ostrovsky, on behalf of Cox Communications
Bob Gastonguay, Executive Director, Nevada State Cable Telecommunications Association
Gardner Gillespie, Attorney at Law, Hogan and Hartson L.L.P., on behalf of Cox Communications
Renny Ashleman, representing the Southern Nevada Home Builders Association and Clark County
Margaret McMillan, Director, Governmental Affairs, Sprint
Terry McHenry, PLS, Nevada Association of Land Surveyors
Robert Hadfield, Executive Director, Nevada Association of Counties (NACO)
Jim Keenan, Nevada Public Purchasing Study Commission
Tom Skancke, Las Vegas Convention and Visitors Authority
Chairman Manendo:
Good morning. Welcome to Assembly Government Affairs. Madam Secretary, will you please call the roll? [Roll taken.] Senator Care, do you want to start with Senate Bill 16?
Senate Bill 16 (1st Reprint): Specifies effect of abstention from voting by member of certain public bodies on necessary quorum and number of votes necessary to take action on matters. (BDR 19-377)
Senator Terry Care, Senate District No. 7 (Clark County):
[Introduced himself.] In 1997, and I was not here, the Legislature passed out the so-called “neighborhood gaming bill,” S.B. 208 of the Sixty-ninth Legislative Session. That bill created certain gaming corridors and, if you wanted to construct a casino outside of that corridor, there was a certain process that you had to go through. You had to get three-fourths of the votes of a county commission to get approval.
When someone tried to open a resort in Spring Valley, it passed with three‑fourths approval, but of the seven county commissioners at that time, three abstained, so only four voted. Of the four who voted, three voted in the affirmative and one voted against. Arguably, three out of four is three-fourths, so the statute was satisfied, but on the other hand, that’s three out of seven, and that’s not three-fourths.
That led to the bill that I had last session, Senate Bill 329 of the Seventy‑first Legislative Session, which said that if you have an elected body of public officials, nothing happens unless a majority of the members of the body vote in the affirmative. It would be just like in the Legislature. The Constitution of the State of Nevada says that a majority of the legislators of both houses are required when you vote on a bill, and we have standing rules in committees where the same rule applies.
The idea of the bill last session was to make city councils and county commissions operate the same way. If somebody is gone or if somebody abstains, that’s a no vote; it doesn’t count. If you get elected, you’ve got to vote. That’s part of the job.
The bill went into effect, and then I was notified by the Legislative Counsel Bureau a few months after we adjourned that the bill hadn’t been correctly written, and that a conflict existed when it came to extensions. I was given a “freebie” bill draft request, and I used it for what you see here. That’s what the bill originally was going to do. S.B. 16 was simply to clarify what the bill last session was intended to do. It didn’t turn out to be that simple. I’ve heard from the smaller counties and the larger counties as well.
Since the enactment of S.B. 329 of the Seventy-first Legislative Session, it’s my understanding that cities and counties have been trying to live up to the spirit of what we tried to do last session, but we do have conflict. Senate Bill 16, which was amended on the Senate side, now says if you have a county of 40,000 population or fewer, the bill does not apply. That’s to accommodate those counties that have three county commissioners who sometimes have to drive a fair length of highway to get to the meeting. Arguably, everybody in those counties knows each other, and the potential for conflict might be greater. Business might come to a standstill if everybody had to abstain all the time and negate any kind of a vote.
What we’re really talking about are counties in excess of 40,000 population. The bill says that, if you abstain because of a conflict pursuant to NRS 281.501, and that’s part of the ethics statute, before you abstain, you must get a written legal opinion from your counsel. That can be your district attorney, your city attorney, whoever, stating with specificity why you must abstain.
It’s not the attorney’s call that you abstain; that’s still going to be the call of the elected official. The attorney can only advise. If you feel comfortable with what the attorney has said, you may abstain and, if that happens, the quorum is reduced by one. That becomes a legitimate conflict. What the bill is intended to do is to discourage people from claiming a conflict when there is no legitimate conflict and forcing them to vote.
If you live in Clark County, you’re aware of a recent controversy involving Red Rock Canyon, and there was speculation in the press that a Red Rock issue may have been headed for a vote before the full Clark County Board of Commissioners. The issue was there were going to be as many as four county commissioners who would have to abstain because of a relationship in one fashion or another with developer Jim Rhodes. Arguably, you would have had three commissioners out of seven voting. Under the old law, this meant that two out of three was a majority, but that’s really only two out of seven, and that, in my judgment, shouldn’t count.
I guess it comes down to what you think your political philosophy is. If you think in a democracy where the majority rules, does that mean a majority of the members elected or just the majority of elected officials voting? The worst-case scenario would be that you have seven county commissioners, six claim a conflict, one votes, and that one commissioner makes the decision for the entire county commission.
That’s basically what the bill does. It simply says that you can abstain, and that’s a change from what we had last year. I’ll agree with that because there are legitimate conflicts, but you’re going to have to get it in writing. That becomes a public document and everybody knows why you’re abstaining. You can go ahead and do that, and then the mechanism under Nevada Revised Statutes [NRS] 281.501 kicks in.
I’ll point out one other thing that Maddy Shipman [Madelyn Shipman, Deputy District Attorney, Civil Division, Washoe County District Attorney] mentioned to me this morning. If a county commissioner or a city council member is at a meeting and it comes time to vote, and that person decides to take a bathroom break, that’s an absence. That would be a no vote. That’s the way I would interpret the law. You only have an abstention when you have a legitimate conflict, and you declare that after reading the letter you’ve received from your local counsel.
Chairman Manendo:
In a case where some folks did abstain and some folks did walk out, they would not be able to take action at all?
Senator Care:
That’s right, Mr. Chairman. They could not. You mentioned two possibilities; some people abstain and some people walk out. For those who walk out, that’s a no vote. That’s not an abstention. That counts as a no vote, much as we would have here. If it’s a legitimate abstention based upon a letter from counsel, then that counts as an abstention and the old law would kick in. That would remain the same.
Assemblyman Hardy:
If you walk out to the bathroom and don’t vote, that’s a no vote? Is that in here, or is that policy that we’re making now by legislative intent? I don’t think they’re counting those no votes in some counties.
Senator Care:
I don’t believe the law says that specifically. I had that conversation with Ms. Shipman this morning. It hasn’t really seemed to me that we needed to put that in statute. I don’t know. That’s an interesting question, Mr. Hardy. Maybe we do, because if you step outside the room, obviously you’re not going to be counted as a yes vote, and I suppose that for that 30 seconds, you’ve reduced the number of members present at a meeting, so then you’ve perhaps reduced the number of votes required for something to pass. I don’t know. Nobody has asked me that until this morning, but I assume that’s the way it was.
Mr. Chairman, that might be a good idea for an amendment. I don’t have anything in writing, but if we need to make that clear, I can certainly submit something to the Committee in short order.
Assemblyman Hardy:
The reason I bring that up is that it has come before in Boulder City. The Boulder City Charter requires the member to vote. It doesn’t allow for the bathroom break option. Every member must vote unless there is a conflict that is so stated, and it keeps things a little cleaner. I like the concept that you’ve talked about with Ms. Shipman.
Senator Care:
Mr. Chairman, I can check with LCB [Legislative Counsel Bureau] and see if the amendment is necessary. It may be that the city charters vary from locality to locality. I don’t know, Mr. Hardy. I like what you’ve just described to me, though.
Chairman Manendo:
If we decide to take a motion on S.B. 16 in five minutes, and a majority of this Committee gets up and goes to the bathroom, we don’t have a quorum and we can’t vote on it?
Senator Care:
That’s right. I would point out that if nothing happens this legislative session, we’re still left with the conflict. That’s another argument for S.B. 16 in some fashion. I will consult with LCB.
Chairman Manendo:
They’re going to look into it. We’ve got you covered.
Irene Porter, Executive Director, Southern Nevada Home Builders Association:
[Introduced herself.] We have worked with Senator Care in doing the amendments on the other side, and we appreciate what he was doing, understanding the problem, and his resolve in supporting it. We may still have some interpretation problems.
Our Clark County Board of Commissioners has seven members. It also has the largest agendas, the most items of any place in the entire state. Commission meetings have lasted from 9:00 a.m. until 11:00 p.m. Obviously, you’re going to have people getting up to go to the bathroom and going to eat. It really is a very different world, and you have our district attorney’s office giving the opinion of having people abstain on a lot of things.
If you’re a member of a large law firm and anybody in that law firm has represented somebody that is standing before you, then you have to abstain because you are a partner in that firm. These commissioners are business people and have to abstain on a lot of things. That’s what this is all about. Because they’re advising them that they have to abstain on all of these matters, it is a difficult circumstance. I think with Senator Care talking to LCB on the absences and getting more clarification, it will help the whole circumstance we find ourselves in, and to better clarify when people need to abstain and when they don’t need to abstain. As a result of that, we’ve supported S.B. 16.
Madelyn Shipman, Deputy District Attorney, Civil Division, Washoe County District Attorney:
[Introduced herself.] I want to clarify why I brought the question to Senator Care. I did not speak on this bill on the Senate side. Washoe County has five commissioners. We’ve been going along swimmingly with the three-vote requirement. I do have a concern and that’s why I sought the clarification about someone leaving the table to take a bathroom break being recorded as a no. I’m thinking that this puts them in the position of having a recorded no on an item that was a consent item or something that they certainly otherwise would have voted for. The answer to that is that they could carve out the time to leave on some item that isn’t of importance to them.
I’ve had two occasions where I’ve had only three commissioners. On the first occasion, it was because two were out of the state on county business. They were representing Washoe County at a NACO [Nevada Association of Counties] function or at some other meeting. On the second, the others were on personal business. They weren’t even present in the county. I just want to give you this for background. The first experience when two were on NACO business, we had three commissioners and a long agenda. We spent 45 minutes on one item only to realize we weren’t going to be able to get three votes on the item. I suggested to the chairman that we continue the item and wait until we had a full board to devote to it, but I had one commissioner refuse to continue the item. I couldn’t even get a majority vote or the three votes necessary to continue the item to the next meeting in order to have a full commission present to vote on the item.
We took care of it. We suspended their rules. We did a motion for consideration and we did a reconsideration at the next meeting. Understand that also meant that our rules on who can make the motion for reconsideration had to be suspended because normally it’s a person on the prevailing side. I just wanted to let you know this can get very complicated.
At the next meeting, we called a recess at my suggestion and had the board go through all items on that agenda that they thought might be controversial. I said, “Why don’t you just move to continue all of those items instead of wasting 45 minutes to find that you’re not going to be able to vote on the item without having it be a no?” They did that and we had a full agenda at the next meeting. I just want you to know some of the complications that come up on this.
The reason I asked the question was that the law and the amendments don’t really speak to absences, and I wasn’t thinking about going to a potty break. I was thinking when they are truly not present because they’re out of town, and I wouldn’t mind tying it down. If there’s going to be an amendment, if it’s on that they’re absent due to county business or to public entity business, maybe that would work. I’m not asking for any amendments. We’ve worked with it and we’ll continue to work with it because I do believe that Senator Care’s desire and philosophy is the right one.
Chairman Manendo:
I’m going to close the hearing on Senate Bill 16 and open the hearing on Senate Bill 181.
Senate Bill 181 (1st Reprint): Revises provisions relating to amendment of redevelopment plans. (BDR 22-992)
Senator Care:
[Introduced himself.] I was hoping that Chuck Gardner, who’s an attorney in Las Vegas, might be present, but I can do this without him. Senate Bill 181 is the result of a Nevada Supreme Court decision. For the record, that decision was City of Las Vegas Downtown Redevelopment Agency v. Crockett, which was decided in November of 2001. I was not involved in the matter at all. I don’t know any of the parties. I know one of the attorneys who represented one of the landowners, and that’s Chuck Gardner. He testified on the Senate side and is not here today, but as I said, I think I can do this without him.
Let me tell you the story behind the Supreme Court case and then it will explain the bill to the members of the Committee. In 1986, the Las Vegas City Council approved the Redevelopment Plan for the Downtown Las Vegas Redevelopment Area, and the plan encompassed a fairly large amount of real estate or real property. Let’s talk about the Stratosphere area because I know that this matter will be familiar to some of you, at least those who live in Clark County. Under the plan, the transfer of real property to public entities or private entities for redevelopment would be okay, and that included demolition of buildings and that sort of thing.
That was available under the law and under the current law not a problem at all, but in August of 1994, the agency convened a public hearing. They wanted to take some property that included a park and turn that over to the redevelopment agency. This is when the Stratosphere itself was looking to expand. I’m going to leave out a lot of the details because there was certainly more than one property owner, but what they wanted to do was take a park that was in the area and create a park elsewhere, but vacate some of the streets and some of the houses and make room for just the project itself.
The issue was whether the redevelopment authority had to amend its plan in order to do that. I don’t practice land use law, so I’m going to make this very simple. What we’re talking about here is when you’re going to start taking houses and moving parks pursuant to a redevelopment plan, whether doing that constitutes or requires you to amend the plan, because if you’re going to do that, there are all manner of procedures that kick in.
What happened in this case was that the property owners were unable to agree to any kind of a deal with the redevelopment authority and fought their eminent domain cases against them. The matter went before Judge Pavlikowski in the district court, and these people filed motions to dismiss the proceedings against them. Judge Pavlikowski ruled on behalf of these landowners, and the Las Vegas Redevelopment Authority then appealed to the Nevada Supreme Court, and that’s how the case got to the Nevada Supreme Court.
I’m not suggesting that the Nevada Supreme Court didn’t follow the law. They worked with what they had. I’m just thinking that we need to amend the law to make it very clear that you have to amend a plan before you start taking people’s houses. S.B. 181 is modeled after the dissent by Justice Maupin. He was the only dissent in the case, and he said that if you’re going to say that you can only amend the plan when you have a material deviation from the plan, that material deviation ought to include vacating streets and taking the houses on those streets.
I was not one of the attorneys in the case, and there are people in this room who can explain it better, but if you look at S.B. 181, in Section 1, the important sections are subsection 1 and subsection 6. Subsection 1 says:
If at any time after the adoption of a redevelopment plan by the legislative body, the agency desires to take an action that will constitute a material deviation from the plan or otherwise determines that it would be necessary or desirable to amend the plan, the agency must recommend the amendment of the plan.
That’s an additional step in what you have now in some cases, and if you look at subsection 6, it says:
As used in this section, “material deviation” means an action that, if taken, would alter significantly one or more aspects of a redevelopment plan that are required to be shown in the redevelopment plan pursuant to statute. The term includes, without limitation, the vacation of a street and the relocation of a park.
There’s been a lot in the news in Clark County about eminent domain and that sort of thing. The bill says, without getting into master plans, and changing master plans, and other matters, that in the case of a redevelopment plan, if you’re going to take entire streets, which is what happened here, that first you have to amend the plan. You actually can have a plan that’s as vague as this plan was and doesn’t have the details, but nonetheless, if you’re going to start taking people’s houses, that would constitute a material deviation from the plan, and that would require an amendment to the plan. There’s an entire process that other people in this room can address better than I can. I don’t know if I’ve made it clear having never been involved in the case, but that’s what S.B. 181 is intended to do.
I hesitate to use the words. You’ve heard them before, but it really is, in my judgment, a somewhat simple bill, and I’ll be glad to take any questions. There will be an amendment from the City of Las Vegas, because in his dissent, Justice Maupin talked about material deviation applying only to streets actually listed on the master plan. The way the bill is drafted, it does not make that distinction, but I know the amendment that the City of Las Vegas wants to offer [Exhibit C] will basically adopt a standard with the language used by Justice Maupin in his dissent. I’m agreeable to the amendment [Exhibit C] when that’s presented to the Committee.
Assemblyman Knecht:
I don’t see an effective date on this bill. When would it become effective if we passed without an effective date listed?
Senator Care:
I think the rule is, and I don’t think it’s been changed, October 1, 2003. Let me also say I’m unaware of any pending litigation. I know that’s always a concern when the Legislature tacks on an effective date. What happens if there’s pending, at least in civil litigation? Is there a retroactive ramification? All I can say on that point is, I don’t know if there is and this is not a field of law I practice in.
Chairman Manendo:
Let’s hear the amendment [Exhibit C] from the City of Las Vegas.
Patrick Smith, Legislative Advocate, Office of Administrative Services, City of Las Vegas:
[Introduced himself.] Let me preface my comments with an apology to you and Senator Care for offering this [Exhibit C] so late in the process. With that said, in the last sentence of subsection 6 of S.B. 181, we would offer to add after the word “streets” a clarification that those streets are those that are depicted on the master plan of streets and highways, as adopted by the local unit of government. That includes streets that are typically larger than 80 feet in width, major arterial streets. Since 1986, and I’m not sure when we implemented the process, but we have our own notification process for vacating any street, including public hearings and mailings. To have to go through an additional notification process on that vacation application would be redundant, if not inefficient and burdensome to the city.
Assemblyman Hardy:
On Exhibit C, “the vacation of a streets,” shall we just strike the word “a?”
Patrick Smith:
This came to me very late, and I apologize for missing the extra “a.”
Assemblyman Hardy:
So, it could be “streets,” not just “street,” so we’d take away the “a?”
Patrick Smith:
Thank you. I apologize for that. “Streets as depicted.”
Mark Fiorentino, representing the Focus Property Group and other developers who practice and present projects to the local governments in Clark County:
[Introduced himself.] I wanted to thank Senator Care for working with us on S.B. 181. I’m here to offer our support for it. The idea to add some extra public input into amendments to a redevelopment plan is a good one, and we wanted to offer our support for S.B. 181. I also think the amendment [Exhibit C] is a good one, and I would be happy to answer any questions that you have.
Chairman Manendo:
I’ll close the hearing on S.B. 181 and open the hearing on Senate Bill 354.
Senate Bill 354 (1st Reprint): Revising certain provisions relating to temporary and final maps for subdivisions of land. (BDR 22-598)
Bob Ostrovsky, on behalf of Cox Communications:
[Introduced himself.] You have before you Senate Bill 354, which is a matter involving the rights of certain types of utilities to enter into an easement at the time these easements are originally developed. S.B. 354, as written and drafted from the Senate, would permit telecommunications companies and cable television companies, referred to statutorily as franchise community antenna and television companies, to enter into the easement at the time that the easements are originally opened. The way to do that is to assure that they are on the easement maps so they know when the streets open.
The purpose of this is so that telecommunications companies and cable companies don’t have to come in and dig up the street a second time. For the most part, that is the case throughout the state, but there are instances where the cable companies and other telecommunication companies have an obligation to serve in their communities through their franchise agreements. Therefore, if a customer desires service, they must enter into the right-of-way to reach that customer’s home. Unfortunately, that has caused some instances where streets have been dug up a second time. S.B. 354 would assure us the right to get into that easement at the time that easement originally is opened.
There is an amendment to the bill [Exhibit D] which was worked out with some assistance from the Legislative Counsel Bureau. They had some concerns about the original language of S.B. 354 with regard to the way it was drafted, and felt that it was necessary to amend it to make sure that everyone is in the same easement, that’s gas, electric, telecommunications, public utilities, any franchise community television antenna company, which you’ll find language in the bill now, and at the same time, recognizing the easements for water and sewer.
It does one other item, which is found in Section 5 of S.B. 354, which gives local planning commissions or governing bodies the right to review these dedicated easements to be assured that there’s a public purpose for being in the street. The Legislative Counsel Bureau felt that this language would conform to statute with the other statutory obligations of public utilities and their other rights. Community and televisions systems, such as the one I represent, have the right of eminent domain to be in the street, but rarely do we find it necessary to use that. This would ease it for everyone. When the map is originally done, we would have an opportunity to review the map, sign off on the map, and that way we would know when the street is going to be open, and we’d be able to prepare to get into the street properly during original construction.
We think that S.B. 354 assists both our companies and the public in meeting our obligation to serve and would very much like your support. I’m going to ask the Cable TV Association to speak on behalf of the entire state.
Bob Gastonguay, Executive Director, Nevada State Cable Telecommunications Association:
[Introduced himself.] As a former GM [general manager] for cable television, I’ve had issues where developers have not notified us and, we had to go in after the fact, usually when the subdivision opens up in the first year, and tear up the streets again. This is not a good thing. For the majority, the developers will come to us, we’ll sign off on the maps, and we know when the easements will be opened, so we can get into it and not become an unfair burden on the community. All of the cable television operations within the state endorse and support this particular piece of legislation [S.B. 354] and hope that you will also.
Bob Ostrovsky:
I think there are other people here who will speak in support of this. We’re trying to work with the other utilities involved, and with the homebuilders’ association, and local governments. Hopefully, they’re all here to support S.B. 354.
Chairman Manendo:
Who will go through all the amendments? I believe it’s not just the last page of the document that was passed out. There are other parts, correct? I haven’t had a chance to match them up.
Gardner Gillespie, Attorney at Law, Hogan and Hartson L.L.P., on behalf of Cox Communications:
[Introduced himself.] I’d be happy to go through the amendment [Exhibit D].
Chairman Manendo:
This amendment [Exhibit D] would be the complete rewrite of S.B. 354? [Mr. Gillespie affirmed this.] We don’t need to go back and forth then?
Gardner Gillespie:
No, this would be an amendment of S.B. 354 as a whole. There are three different statutory provisions that are being amended that concern different types of developments. Right now, they’re contained in different sections of the NRS [Nevada Revised Statutes], and the amendments are basically the same in each of those areas.
The changes are the result of discussions with LCB [Legislative Counsel Bureau], some of the other utilities, and also the homebuilders. The changes make it clear that easements are required to cover these services. In almost all cases, easements are granted. Some local ordinances require the granting of these easements, but this gives some consistency, and it requires that there be an easement for gas, electric, telecommunications, and franchise cable television. That would be in one easement, and then there is another provision for an easement for water and sewer public utilities which would be a separate easement. That’s the purpose for the change here under subsections (d) and (e) [page 3 of Exhibit D].
Subsection (c) [page 3 of Exhibit D] simply makes it clear that, if there are any roads or easements for access that the owner intends to offer for dedication, those would be on the final map. Then there are a couple of conforming amendments in Section 2 [page 4 of Exhibit D] that simply note and include “community antenna television cable” with the other utilities for consistency.
There is an amendment under Section 3 [page 6 of Exhibit D] to NRS 278.4713 that does the same thing with respect to specifying the easements for these utilities. Section 4 [page 8 of Exhibit D] amends NRS 278.472 in a similar way.
Section 5 [page 9 of Exhibit D] contains language worked out with the Legislative Counsel Bureau to be sure that the local planning commission has an opportunity to relieve the developer of the obligation of granting these easements in the event that there’s a demonstration that the dedication doesn’t bear an essential nexus to the public purpose for the dedication and is not roughly proportional to the overall public impact of the development proposed. That language comes from a couple of United States Supreme Court cases and is intended to make sure that there are no takings that would be in violation of the Fifth Amendment of the United States Constitution.
Assemblyman Collins:
Where have you been refused, Mr. Gastonguay? The second question would be, you’re just codifying this because it’s in a lot of local ordinances and you want to make it consistent in the state?
Bob Gastonguay:
That is correct. While I was general manager here in Carson City, the developer of the development that is just north of town failed to notify us and, at that time, there was no ordinance requiring cable television to get into the project or into the easements. Because of the locale and the rock formations out there, we never did get into that development until, if I’m not mistaken, after my tenure. They might have gotten in when they opened up the streets again, but I doubt it to this day because of the cost and the rock formations out there.
Assemblyman Collins:
I’ll disclose I’m a qualified contractor on Cox Communications’ list in Las Vegas. That’s kind of the business that I’m in, underground and whatnot, so I was curious about that because I know there’s always one of the utilities or the cable company blamed for why we’re not ready, but I just didn’t know how much you were getting into there.
Bob Gastonguay:
For the most part, 90 percent of contractors do us the courtesy of allowing us to be signatories on the maps, so that we know when the streets are opened up. You’re not the problem.
Assemblyman Grady:
Have you discussed this with the Transportation Committee on the Senate side? Why wasn’t the amendment done on the original bill before it came to this House?
Bob Ostrovsky:
We have discussed it with the Transportation Committee on the other side. The Legislative Counsel Bureau, on relatively short notice when Senate Bill 354 was being processed and actually on the Senate Floor, decided they had some concerns about takings issues and wanted to insert language which is reflected in Section 5 [page 9 of Exhibit D]. Because of the rush to get amendments done and the inability of us to get an amendment done in time to meet the deadline, we made a commitment to the Legislative Counsel Bureau that they would permit S.B. 354 to move from the Senate, as long as we brought the amendment [Exhibit D] forward on this side.
Assemblywoman Pierce:
I realize it comes from a U.S. Supreme Court decision, but I’m having trouble understanding what the last two lines mean, “It is not roughly proportional to the overall public impact of the development proposed.”
Gardner Gillespie:
Yes, this is a legal question. Without getting into too much detail, the U.S. Supreme Court has been faced with cases where there are conditions placed on land use permits. In one case, there was a situation where there was a building that was going to create more traffic, and the land use board wanted the developer to dedicate a bike path with the hope that that bike path would reduce traffic. There was a question in the U.S. Supreme Court as to whether there was a sufficient proportionality between the required dedication of the bike path, and the overall impact of the development on the public roads.
It seems quite unlikely that this issue of proportionality would arise in a situation where you have a development, and the dedication required is simply an easement to permit the people in the development to receive electric, telecommunications, gas, and television service, but it was felt that because the U.S. Supreme Court has used this terminology, we should have it in the particular bill.
Irene Porter:
[Re-introduced herself.] With me is our attorney.
Renny Ashleman, representing the Southern Nevada Home Builders Association and Clark County:
[Introduced himself.] We support S.B. 354. The industry worked very hard with us to get this in satisfactory form and to resolve some of the problems that you’re acquainted with. What might be involved here that has caused the constitutional problem is that, in theory, we could refuse to let a cable TV company into our trench unless we used eminent domain or otherwise came after, then we could charge them for it, at least in theory.
One of the things that made this legislation possible is we decided we would yield on that point because of the overall good to the community of not getting things torn up twice, and trying to get proper coordination of putting utilities in. That is part of what’s involved in the thinking of the Legislative Counsel Bureau. All of the people involved in this worked very hard together. I think it was a very satisfactory resolution to this, not only to the Transportation Committee, but actually we checked with the Chairman of Government Affairs and with the Chairman of Commerce in all the processes of S.B. 354 to make sure that they knew that we were doing this amendment and why we were doing it. I’d be happy to answer any questions.
Assemblyman Collins:
Renny, you’re the expert so I will ask you. There’s a ditch drawing that shows locations of these different utilities. Recently, the cable and telephone were moved to a different location in that easement. I think that had something to do with the PUC. Is there any effect on any of this that the PUC still determines, or are they out of this, and this is just codifying and clearing up some things?
Renny Ashleman:
This is not going to affect the PUC’s regulation of how you do the actual trenching and so forth. There’s always been an argument as to whether they should or should not have jurisdiction over cable TV, but I don’t see this causing us any problems.
Assemblyman Collins:
In that drawing it says this is where cable TV will be, this is where telephone will be, this is where power will be, et cetera, so they’re out of this. That’s good, I guess.
Renny Ashleman:
Yes, those are all safety consideration items, and I don’t see this having any impact on it at all.
Irene Porter:
The Southern Nevada Home Builders Association, for many years, has worked very successfully with Cox Communications in southern Nevada. We worked out our problems 10 or 12 years ago on how to get all of this coordinated.
We currently go through a process with all the developments and all of the entities in southern Nevada, wherein there is an early notification to all utilities and to Cox Communication with a map going over to them at the tentative map stage. They then come back with the final maps to our engineers, then Cox Communications, and we put them in. We know that process is done in the county, and it’s done in Henderson, so this law that you’re seeing today conforms us to what we’ve been doing in the Las Vegas area for the last 12 years, in working with, as we call them, our dry utility contractors like Mr. Collins.
For us, it’s not a change. I’ve been assured by Cox Communications that our procedures that we’ve worked out over these years and our contracts will be the same, and that there isn’t going to be any change for any of us by Cox Communications as a result of this legislation, and that’s why we have worked with them to ensure that we’re not tearing up streets.
Margaret McMillan, Director, Governmental Affairs, Sprint:
[Introduced herself.] With me today is Ann Pongracz, General Counsel. We are in support of S.B. 354 and to answer any questions that you may have. We’ve been very pleased with the cooperation that we’ve received in developing these changes, and I want to thank the cities and counties, as well as the home builders, for working with us on it.
Terry McHenry, PLS, Nevada Association of Land Surveyors:
[Introduced himself.] In its initial language, we had some serious concerns over Senate Bill 354. However, there were amendments that this first reprint represents in the other house, and I just have now looked at the amendments that were discussed in the prior testimony here. It appears that we have no problem with S.B. 354 now, for the record.
Chairman Manendo:
I will close the hearing on Senate Bill 354. We are going to take a recess. [9:12 am.]
[9:35 a.m.] Our last bill on the agenda is Senate Bill 146.
Senate Bill 146: Revises provisions governing purchasing contracts of local governments. (BDR 27-321)
Robert Hadfield, Executive Director, Nevada Association of Counties (NACO):
[Introduced himself.] [Exhibit E was distributed.] Joining me, I have Jim Keenan, my technical expert, who is a member of the Nevada Public Purchasing Study Commission. I also have a representative from the Las Vegas Convention and Visitors Authority.
Senate Bill 146 is a cleanup measure to the local purchasing act to correct a problem we thought we solved back in 1997 when we first amended the legislation to allow local governments to purchase off of contracts bid by other government entities. Since that time, we’ve had varying opinions from different district attorneys as to what that meant.
I went to the Legislative Counsel Bureau this session and asked them the best way to clarify the statute to make the intent clear. That’s exactly what you have before you in S.B. 146. In the change that was made in Section 1, subsection (m), and then also in Section 2, it makes it clear that local governments have the same purchasing authority that the state of Nevada does to purchase off of consortium contracts from other government entities. As you may be aware, it is quite common practice for, not only states, but local governments, to combine together in purchasing consortiums to go out to bid to get the best benefit of purchasing power. Throughout our state, we have a number of smaller entities that purchase off of catalogs, but they don’t get the benefit of having the opportunity to join in in larger contracts.
The purpose of S.B. 146 is to make it clearer in the purchasing statute that local governments in Nevada have the same authority that the state of Nevada does. They can purchase off of national contracts, both in the state and outside of the state. Mr. Keenan is an expert in purchasing, and I’ve asked him to say a few words on behalf of his group that reviews these matters.
There is a proposed amendment to S.B. 146 that I understand Senator O’Connell doesn’t have a problem with. I would consider the amendment a friendly amendment, as long as it would not jeopardize the passage of S.B. 146. The amendment is to solve our problem and that will be brought to your attention following our testimony.
Jim Keenan, Nevada Public Purchasing Study Commission:
[Introduced himself.] I echo Mr. Hadfield’s comments. I would like to add that in a recent session, our study commission also did a cleanup action on NRS Chapter 332 and our group didn’t perceive this change either, so it is long overdue. It makes the purchasing function more valuable, easier to do, and provides opportunities to save money in the acquisition of supplies and services. Our group wholeheartedly supports S.B. 146.
Tom Skancke, Las Vegas Convention and Visitors Authority:
[Introduced himself.] You have before you an amendment [Exhibit F], and I like the way Mr. Hadfield referred to it as a friendly amendment. We would have amended S.B. 146 in the Senate, but it moved out so quickly and was transferred to the Assembly, that we could not amend it over there. I have spoken to Senator O’Connell and she has agreed to the amendment, which is why we have brought it to you today.
I’d like to briefly explain the amendment and the reason for the amendment. In 1973, the Legislature passed legislation that limited competition within the Las Vegas Convention and Visitors Authority for advertising purposes. We could not negotiate contracts internally, and I’ll give you an example.
If we wanted to place a sign inside of the convention center that directed people to a specific room for a specific convention, we would have to put that out to bid for a contract. That would require a bid document that would require the staff to go through the process, interview potential bidders, and take that item before the board. This amendment allows us to do internal advertising. This is not an item where we are going to be spending any money. This is an item where we will be generating revenue.
Our intent is to be able to negotiate individual companies to find the best product and the best price for advertising within the convention center. It also relates to reader boards so that we can direct conventioneers to specific facilities or specific conventions inside of the convention center. Oftentimes, we have more than one convention going on at a time. It is not uncommon for us to have meeting rooms that have been rented out for meeting purposes or smaller conventions, while we have a larger convention going on in our convention space. This item would allow us to put up directional boards and reader boards within the convention facility to direct people to their specific convention.
This is not an item where we are putting something out to bid or where we are purchasing something, so it does not preclude us from any type of other bidding. If we’re going to add convention space to our facility, that would have to go out to bid. Any type of purchasing would still have to go out to bid. This would allow us to negotiate one-on-one with companies to get the best deal for the convention authority. It is basically a revenue generator for us.
There are some entities that have the authority now to be able to negotiate this way where you can go to private companies and have a one-on-one discussion and find out what type of product they have and what type of revenue sharing proposal they would have for the convention authority, and that’s what this amendment [Exhibit F] does. This is the only section that’s currently open in the NRS where we would be allowed to do this. We would appreciate your support and I’ll answer any questions that the Committee may have.
Chairman Manendo:
Ms. O’Grady, this amendment would fit into Senate Bill 146?
Eileen O’Grady, Committee Legal Counsel:
Yes.
Tom Skancke:
In the language that would be required would be in Section 1, subsection 1, we would add letter p and the language would say, “Commercial advertising in recreational facilities operated by a fair and recreation board.” Then we would delete, as you have on the document [Exhibit F], NRS Sections 244A.657, 244A.659, 244A.661, 244A.663, 244A.665, and 244A.667.
Chairman Manendo:
Would we do that?
Tom Skancke:
Those sections pertain to commercial advertising within recreational facilities that are operated by a fair and recreation board. So there’s no confusion, when the statute was originally established, fair and recreation boards were the statutes for the Las Vegas Convention and Visitors Authority and the Reno‑Sparks Convention and Visitors Authority. Many years ago, they were identified as fair and recreation boards; they are now referred to as convention and visitors authorities.
Chairman Manendo:
Have you checked with the Chairwoman of Senate Government Affairs?
Tom Skancke:
I have and she is amenable to the amendment.
Assemblyman Christensen:
This amendment [Exhibit F] didn’t make it on over on the Senate side. What was the reason again?
Tom Skancke:
It moved so quickly out of the Senate that I didn’t get a chance to put an amendment on over there. The amendment was not brought to my attention by my client until after S.B. 146 had already moved.
Assemblyman Christensen:
Is there anyone that you are aware of that has concerns about this amendment [Exhibit F] or the bill [S.B. 146]?
Robert Hadfield:
The amendment [Exhibit F] was brought to me in the last few days. I’ve reviewed it with the purchasing folks to make sure that there wasn’t any undue complication here, and has been pointed out, it’s to solve a particular problem that a very limited group, the convention and visitors authority, has. Because of that, I’m satisfied as long as it doesn’t prevent S.B. 146 from passing. It’s an improvement.
Assemblyman Christensen:
The NRS sections that are being deleted allow it to work like the airport authority does with the assortment of vendors that they work with?
Tom Skancke:
That is correct. There are some entities that are allowed to negotiate one‑on‑one because they’re revenue generators, and that’s what this is; it’s a revenue generator. We are not spending money. We’re going out to bid on a contract for someone to do something for the convention authority to spend money. We are requesting people to come in and submit proposals to us to offer us the best technology and it generates revenue. It would be a revenue sharing type arrangement where the convention authority could potentially receive a percentage of the proceeds of the gross receipts from the advertising that’s done inside of the building.
Assemblyman Christensen:
I don’t have any more questions. If there aren’t any more in the Committee, is this something that you would entertain as a motion today?
Chairman Manendo:
We can wait a day. There might be some additional questions. I haven’t even looked at the sheet to see who else is going to testify.
Assemblyman Christensen:
I’ve been working on another bill that’s very similar to this in terms of its setup and how it operates working with the county. That’s why I asked about the sections within the NRS that are addressed in this amendment. The way that I read it, it sounds the same. It works for me, but if we’d like to wait, that’s fine.
Chairman Manendo:
We’ll close the hearing on S.B. 146 and bring it back to Committee. Committee, please turn to Senate Bill 79 in your book.
Senate Bill 79: Reduces number of required meetings of Board of Southern Nevada Regional Planning Coalition. (BDR S-455)
Chairman Manendo:
Senate Bill 79 was heard on April 15. Any questions or comments on Senate Bill 79? The Chair will entertain a motion.
ASSEMBLYWOMAN WEBER MOVED TO DO PASS S.B. 79.
ASSEMBLYMAN COLLINS SECONDED THE MOTION.
THE MOTION CARRIED. (Assemblyman Knecht was absent for the vote.)
Chairman Manendo:
Ms. Weber, do you want to carry this on the Floor?
Assemblyman Weber:
Sure.
Chairman Manendo:
Committee, let’s turn to Senate Bill 78.
Senate Bill 78 (1st Reprint): Makes various changes relating to assistance to finance housing. (BDR 25-467)
April 25, no opposition.
Assemblyman Williams:
On this particular bill [S.B. 78], I had raised the question about the sunset, but I had some subsequent meetings with the sponsors of the bill, and they expressed their concern in reference to being able to attempt to do some things that they’re trying to do, and the sunset would always be lingering over their head. They didn’t want to go into any long range planning and then find out that they have to come back to the Legislature to address the sunset. After having those conversations, I feel comfortable with their position. I’d like to see it, but I don’t want to hold S.B. 78 up because of that.
Chairman Manendo:
Is there any appetite on the Committee for a sunset?
Assemblyman Williams:
They had one on there. They don’t want another one. I don’t want to stop it if the rest of the Committee doesn’t want it. I thought it was a good idea.
Chairman Manendo:
We can just see where everybody is. It seems like there’s a little bit of a split. We’ll just think about it a little more then.
Anything else to come before the Committee? We are adjourned. [10:00 a.m.]
RESPECTFULLY SUBMITTED:
Pat Hughey
Committee Secretary
APPROVED BY:
Assemblyman Mark Manendo, Chairman
DATE: