KATHY TIGHE, Clerk of the City of Las Vegas; CITY OF LAS VEGAS, NEVADA; RON LURIE, BOB NOLEN, STEVE MILLER, ARNIE ADAMSEN, and SCOTT HIGGINSON, All in Their Capacity as Members of the CITY COUNCIL OF LAS VEGAS, NEVADA, and Not Individually, Appellants, v. CHARLES ERIC VON GOERKEN, dba BIERNUTZ, Respondent
Tighe v. Von Goerken
Mowbray, C. J., Springer and Rose, JJ., concur.
KATHY TIGHE, Clerk of the City of Las Vegas; CITY OF LAS VEGAS, NEVADA; RON LURIE, BOB NOLEN, STEVE MILLER, ARNIE ADAMSEN, and SCOTT HIGGINSON, All in Their Capacity as Members of the CITY COUNCIL OF LAS VEGAS, NEVADA, and Not Individually, Appellants, v. CHARLES ERIC VON GOERKEN, dba BIERNUTZ, Respondent.
KATHY TIGHE, Clerk of the City of Las Vegas; CITY OF LAS VEGAS, NEVADA; RON LURIE, BOB NOLEN, STEVE MILLER, ARNIE ADAMSEN, and SCOTT HIGGINSON, All in Their Capacity as Members of the CITY COUNCIL OF LAS VEGAS, NEVADA, and Not Individually, Appellants, v. CHARLES ERIC VON GOERKEN, dba BIERNUTZ, Respondent.
No. 21826
July 6, 1992
833 P.2d 1135
[Rehearing denied September 3, 1992]
Roy A. Woofter, Las Vegas City Attorney, and Larry G. Bettis, Deputy City Attorney, Las Vegas, for Appellants.
Thompson & Harper, Las Vegas, for Respondent.
OPINION
By the Court,
Steffen, L:
Appellants, as members of the City Council of Las Vegas, Nevada (Council), challenge the propriety of the ruling by the district court granting respondent Charles Eric Von Goerken's application for a writ of mandamus ordering the Council to issue Von Goerken a tavern liquor license. The district court found that the Council's denial of Von Goerken's application for preliminary approval of a tavern liquor license was arbitrary and capricious and a clear abuse of the Council's discretion. We disagree and reverse.
FACTS
In April, 1990, Von Goerken filed a request with the Council for approval of a twelve-month preliminary liquor license for a tavern surrounded by single and multiple family residences. The property on which the proposed tavern was to be situated was zoned C-l (commercial use). Zoning regulations in effect at the time of Von Goerken's application were compatible with the placement of a tavern on the applicant's property. Prior to Von Goerken's purchase of the subject property, the Council had approved the proposed construction of a commercial structure on the property submitted by the former owner. Moreover, a back ground investigation by the Las Vegas Metropolitan Police Department revealed no basis for concluding that Von Goerken was unsuitable to hold a liquor license.
Although Von Goerken's application included his current address and telephone number, the Council sent written notice of the meeting concerning the application to a former address, thus effectively providing Von Goerken only with telephonic notice the day prior to the morning of the meeting. At the scheduled meeting, no members of the public spoke either for or against the application, and Von Goerken appeared without legal counsel because of his late awareness of the meeting date and time. The Council unanimously denied Von Goerken's application.
Von Goerken sought relief from the Council's denial by filing a petition for a writ of mandamus with the district court. The lower court found that the Council's action was unsupported by substantial evidence, and that the action was therefore arbitrary, capricious, and a manifest abuse of discretion. In granting the writ, the district court ordered that the Council issue the permits necessary to the operation of Von Goerken's tavern. The Council thereafter elected to challenge the order entered below by appealing to this court.
DISCUSSION
Incorporated cities are empowered to license and regulate the sale of alcoholic beverages. NRS 268.090(1). A municipality's discretionary regulation of the dispensation of alcoholic beverages within its corporate limits should be respected by the courts absent clear evidence that an act of regulation is arbitrary, capricious, or an abuse of discretion. See Gragson v. Toco, 90 Nev. 131, 134, 520 P.2d 616, 617 (1974). We have settled the deferential standard of review accorded to the actions of municipalities in prior decisions of this court. Thus, in Urban Renewal Agency v. Iacometti, 79 Nev. 113, 118, 379 P.2d 466, 468 (1963), we held that "a trial court should sustain discretionary action of a governmental body, absent an abuse thereof, to the same extent that an appellate court upholds the discretionary action of a trial court." We also held in Clark County Liquor & Gaming v. Simon & Tucker, 106 Nev. 96, 97, 787 P.2d 782, 783 (1990), that "the court may interfere with an agency's decision only when there is a manifest abuse of discretion." In Simon & Tucker, we determined that in balancing private and public interests, a governmental agency must consider the public interest paramount. Id. Finally, in characterizing the type of discretionary abuse inviting judicial intervention, we observed that "the essence of the abuse of discretion, of the arbitrariness or capriciousness of govern mental action in denying a license application, is most often found in an apparent absence of any grounds or reasons for the decision. 'We did it just because we did it.'" City Council v. Irvine, 102 Nev. 277, 280, 721 P.2d 37, 372-73 (1986).
Although the land upon which Von Goerken intended to construct a tavern was zoned to accommodate such a commercial enterprise, it is clear that compatible zoning does not, ipso facto, divest a municipal government of the right to deny certain uses based upon considerations of public interest. See Nevada Contractors v. Washoe County, 106 Nev. 310, 792 P.2d 31 (1990).
We are thus left with the single issue that faced the court below, namely, whether the Council's rejection of Von Goerken's application for a liquor permit constituted an abuse of the Council's broad discretionary powers.
The district court found that the Council had manifestly abused its discretion by basing its decision entirely on opinions of Council members which, the court determined, did not constitute substantial evidence. We do not entirely agree. Although it is true that the only form of "evidence" supplied to the Council was the statement of Councilman Higginson, it is clear that a critical aspect of the statement was not in the form of an opinion. Specifically, the councilman reminded the Council of the fact of the residential nature of the entire area surrounding the proposed tavern. Moreover, Councilman Higginson noted that the location was in the heart of a residential area to an even greater extent than another specified location (Michael Way at Vegas) where a tavern license had been denied because of the residential nature of the neighborhood.
Von Goerken at no time controverted the fact that the intended location fell in the midst of a residential area. Members of the Council were elected by their constituents in the City of Las Vegas to represent them in protecting and promoting the public good. In this instance, the Council exercised the equivalent of judicial notice in recognizing the actual environment surrounding the proposed tavern site. The Council thereafter exercised its discretion on behalf of the City's best interests, as the members of the Council unanimously perceived them to be. Under these circumstances, we are unable to conclude, despite the abbreviated proceedings and testimony, that the Council abused its discretion. The record does not reflect discrimination against Von Goerken in favor of some other applicant, or mere speculation concerning the compatibility of the proposed tavern with its surrounding environment. The Council had before it irrefutable evidence of the nature of the neighborhood into which Von Goerken wished to introduce a tavern. Councilman Higginson also had the benefit of specific knowledge attributable to the fact that the proposed tavern site was situated within his district.
Despite our conclusion that the record does not evince a clearly arbitrary and capricious decision by the Council, it is nevertheless apparent that the Council acted without the benefit of a reasonably developed evidentiary or factual presentation. We are convinced that when private property is denied the uses for which it is zoned, any such denial must be based upon meaningful, reasonably complete factual information.
Although we are unable to conclude that the Council's decision represents a basis for judicial intervention in the form of mandamus, we do conclude that the evidentiary basis for the Council's action was inadequate. Therefore, a new public hearing will be necessary in order for the Council to fully consider factual information pertaining to the impact or effect of Von Goerken's application for a tavern liquor license. Von Goerken is to be given lawful notice of the meeting to allow him sufficient opportunity to gather evidence in support of his application.
CONCLUSION
For the reasons specified above, we conclude that the district court erred in finding that the Council had manifestly abused its discretion in denying Von Goerken's request for a liquor permit. Accordingly, the orders issued below are vacated. Nevertheless, we remand this matter to the district court with instructions to order the Council to schedule a new public hearing, as stated above, in the event Von Goerken elects to again present his application to the Council for consideration.
Mowbray, C. J., Springer and Rose, JJ., concur.