Friday, May 2, 2003 | 5:08 a.m.
WEEKEND EDITION: May 4, 2003
The Clark County Commission is struggling with a different kind of majority rule.
Under the terms of changes made April 16 to the county's rules for adopting waivers to existing land-use plans, a "super-majority" of two-thirds of the commissioners need to approve the waiver. When the county commission passed the new rules 5-1, it also asked for an opinion on the legality of the super-majority rule.
The super-majority rule has not gone into effect. Commissioner Chip Maxfield, who asked for the opinion, delayed implementation of the rule until August.
County counsel Rob Warhola and Chris Kaempfer, an attorney who frequently represents developers on zoning and land-use issues before the commission, are preparing to ask the District Court for a judicial review of the new rule.
The new rule came out of an effort led by Commissioners Bruce Woodbury, Chip Maxfield, Rory Reid and Yvonne Atkinson Gates. Commissioner Mark James initially was skeptical of the super-majority rule for the waivers, referred to as nonconforming uses, but signed onto the rule.
The impetus for the reform came from a number of contentious issues before the commission in which the board approved zoning and waivers that did not conform to existing master plans. Citizen advocates and neighborhood activists cried foul, arguing that more deference needed to be given to plans that residents, in many cases, consulted before buying their homes.
"I just think that we had to send a message to instill public confidence in the process," Commissioner Rory Reid said. "We're already required (under state law) to have four votes, so it doesn't change much."
"This is to show we're serious about changing the way that the county does business."
An in-house study by the county's Comprehensive Planning Department several years ago found that more than 97 percent of such nonconforming applications were approved by the commission.
Kaempfer and his allies in the community of residential and commercial developers do not argue with the contention that some reforms are needed. But they say that the super-majority rule violates the basic rule of one-man, one-vote democracy.
Under the rules, five of the seven commissioners must support a nonconforming application to pass unless one or more commissioners abstain.
"That means that with a seven-member board, any three members of the commission can stop a project from going forward," Kaempfer said. "I have to convince over 70 percent of the board that a project is worthwhile.
"There is a fundamental feeling that if I get four out of seven, that ought to be enough for me to proceed. Any nonconforming zone change would require a super-majority vote. There is a real legal question as to whether that is valid."
Kaempfer also said the rule could have a chilling effect on new development, potentially driving up home prices for the tens of thousands of new residents streaming into Las Vegas yearly.
Warhola, defending the commission's rule, and Kaempfer are preparing their cases to ask for a judicial review from the court. The two sides will submit briefs within the next several weeks arguing the legality of the issue under state law.
Warhola said the issue is not whether the new rule makes life more difficult for developers.
"It comes down to the law," he said. "It doesn't matter whether it creates a difficult situation. It is a question of whether the law allows it."
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