Scenic Nevada, Inc. v. City of Reno

132 Nev., Advance Opinion 46
IN THE SUPREME COURT OF THE STATE OF NEVADA
SCENIC NEVADA, INC., No. 65364
Appellant,
vs.
CITY OF RENO, A POLITICAL FILED
SUBDIVISION OF THE STATE OF
NEVADA,
JUN 3 0 2016
Respondent.
at
IE K. LINDEMAN
a
irraiME C.CI RT
Appeal from a district court order denying declaratory relief
challenging the City of Reno's 2012 digital billboard ordinance. Second
Judicial District Court, Washoe County; Patrick Flanagan, Judge.
Affirmed.
Law Offices of Mark Wray and Mark D. Wray, Reno,
for Appellant.
Karl S. Hall, Reno City Attorney, and Jonathan D. Shipman, Deputy City
Attorney, Reno,
for Respondent.
BEFORE THE COURT EN BANC.
OPINION
By the Court, PICKERING, J.:
The Nevada Constitution secures the right of the people to
enact or repeal statutes by initiative petition, followed by direct
democratic vote. To protect the initiative process, the Nevada
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Constitution prohibits the Legislature from amending or repealing a voter-
initiated statute for three years after it takes effect. Nev. Const. art. 19,
§ 2(3). Although Section 2(3) refers to "statutes" enacted by initiative,
Section 4 extends the initiative powers in Article 19 to "the registered
voters of each county and each municipality as to all local, special and
municipal legislation of every kind in or for such county or municipality."
Here, we are asked to decide two questions: first, whether the three-year
legislative moratorium in Article 19, Section 2(3) applies to voter-initiated
municipal ordinances; and second, whether amendments to a voter-
initiated ordinance during the three-year legislative moratorium may be
validly incorporated into a subsequent ordinance after the three-year
moratorium expires. We hold that the three-year legislative moratorium
applies to municipal initiatives and, though the City of Reno enacted two
ordinances amending the voters' initiative within three years of its
passage, the subsequent reenactment of those ordinances after the three-
year legislative moratorium cured the constitutional defect. Accordingly,
we affirm the district court's order entering judgment in favor of the City
of Reno.
I.
Appellant Scenic Nevada, Inc. is a volunteer organization that
was formed in January 2000 to advocate for stronger billboard controls in
the City of Reno (City). It qualified an initiative for submission to general-
election voters in 2000 as Ballot Question R-1, which asked voters to adopt
the following ordinance: "The construction of new off-premises advertising
displays/billboards is prohibited, and the City of Reno may not issue
permits for their construction." The initiative passed by a wide margin.
After being certified by the Reno City Council on November 14, 2000, the
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Initiative Ordinance became effective and is now codified as Reno
Municipal Code (RMC) § 18.16.902(a).
Within the first three years of the new law's effective date, the
City enacted two billboard-related ordinances. The first, Ordinance No.
5295 (the Conforming Ordinance), was enacted on January 22, 2002, and
interpreted the Initiative Ordinance's prohibition on new construction as a
cap on the number of billboards that could be built in the City of Reno.
The Conforming Ordinance stated, "In no event shall the number of off-
premises advertising displays exceed the number of existing off-premises
advertising displays located within the City on November 14, 2000." RMC
§ 18.16.902(b). The second, Ordinance No. 5461 (the Banking Ordinance),
was enacted on June 11, 2003, and allowed owners of existing, legally
established billboards to remove the billboard and "bank" a receipt for up
to 15 years in order to relocate it to a different location. RMC § 18.16.908.
On October 24, 2012, after four years of public process, the
City Council enacted a third ordinance, Ordnance No. 6258, entitled in
part "Digital Off-Premises Advertising Displays, including Light-Emitting
Diode (LED)" (the Digital Ordinance). Prior to the Digital Ordinance,
RMC required that all lights on billboards be directed toward the
billboard. However, the Digital Ordinance created an exception for digital
advertising displays, along with strict standards regarding illumination,
timing, and presentation. In addition to creating the exception for digital
billboards, the Digital Ordinance also reenacted and amended the
Conforming Ordinance and the Banking Ordinance to accord with the
Digital Ordinance. RMC § 18.16.905.
On November 16, 2012, Scenic Nevada filed a complaint for
judicial review, seeking to invalidate the Digital Ordinance. It alleged
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that any digital billboards erected pursuant to the Digital Ordinance
would necessarily be "new billboards" prohibited by the 2000 Initiative
Ordinance and, to the extent that they were allowed as an existing
billboard under the Conforming and Banking Ordinances, those
ordinances were invalidly enacted during the three-year legislative
moratorium that followed enactment of the Initiative Ordinance. Of note,
Scenic Nevada did not and does not on appeal seek to disturb any
ostensibly vested rights arising under the 2002 and 2003 Conforming and
Banking Ordinances but, rather, to invalidate the 2012 Digital
Ordinance.' After the district court granted the City's motion to dismiss,
Scenic Nevada filed an amended complaint requesting declaratory relief
The district court held a bench trial, after which it entered judgment for
the City, finding that the three-year legislative moratorium under Section
2(3) of the Nevada Constitution does not apply to municipal initiatives and
that the Conforming, Banking, and Digital Ordinances were valid
exercises of the City's legislative power. Scenic Nevada appeals.
"When legal, not factual, issues are at play, this court reviews
de novo a district court order resolving a request for declaratory relief."
Las Vegas Taxpayer Accountability Comm. v. City Council of Las Vegas,
125 Nev. 165, 172, 208 P.3d 429, 433 (2009); see also Educ. Initiative PAC
v. Comm. to Protect Nev. Jobs, 129 Nev. 35, 41, 293 P.3d 874, 878 (2013).
'In its reply brief, Scenic Nevada states as follows: "The vested
rights of those holders of banked billboard receipts to relocate static
billboards shall not be affected by anything decided in this appeal. Scenic
Nevada has never asked for those vested rights as to static billboards to be
taken away, either. This case always has aimed solely at invalidating the
2012 digital billboard ordinance."
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Scenic Nevada seeks to invalidate the 2012 Digital Ordinance
because it incorporated the 2002 and 2003 Conforming and Banking
Ordinances, which were enacted within the first three years of the voters'
2000 Initiative Ordinance. The City argues that the three-year legislative
moratorium does not apply to municipalities and, even if it did, "the
initiative did not bind or limit the City Council's legislative discretion in
2012 when it adopted the digital board ordinance."
A.
The Nevada Constitution prohibits the Legislature from
amending or repealing an initiative measure approved by the voters
within three years from the date it takes effect. Nev. Const. art. 19,
§ 2(3). 2 While Section 2(3) only refers to initiative-based "statute[s],"
Section 4 extends the initiative power in Article 19 to "the registered
voters of each county and each municipality as to all local, special and
municipal legislation of every kind in or for such county or municipality."
Based on Section 4's extension of the initiative power to municipal
legislation, Scenic Nevada argues that the three-year legislative
2 Section 2(3) states in relevant part:
If a majority of the voters voting on such question
at such election votes approval of such statute or
amendment to a statute, it shall become law and
take effect upon completion of the canvass of votes
by the Supreme Court. An initiative measure so
approved by the voters shall not be amended,
annulled, repealed, set aside or suspended by the
Legislature within 3 years from the date it takes
effect.
Nev. Const. art. 19, § 2(3).
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moratorium applies to initiative-based municipal ordinances, equally with
initiative-based statutes.
The City disagrees. It cites NRS 295.220, which provides that
an approved municipal initiative ordinance "shall be treated in all respects
in the same manner as ordinances of the same kind adopted by the
council."3 According to the City, under the authority of Reno City Charter
(RCC) § 2.080, "[c]ity ordinances may be enacted on one day, and
subsequently amended, annulled, repealed, set aside or suspended any
time thereafter. . . ." Thus, the City maintains that, under NRS 295.220
and RCC § 2.080, an initiative-based municipal ordinance is immediately
subject to amendment or repeal, equally with any other municipal
ordinance.
"[li]he initiative power given to the electors of a municipality
with respect to municipal legislation is no different from the initiative
power given to the people as a whole with respect to state matters." Rea v.
City of Reno, 76 Nev. 483, 486, 357 P.2d 585, 586 (1960). Though this
court has not considered whether Article 19, Section 2(3) applies to
municipal initiatives, it has applied the three-year legislative moratorium
to initiatives that passed legislation at the county level. See Sustainable
Growth Initiative Comm. v. Jumpers, LLC, 122 Nev. 53, 73, 128 P.3d 452,
466 (2006) (stating "[a]mendment of an initiative is prohibited within the
first three years of its passage" when analyzing whether the legislative
3 NRS 295.220 states in relevant part: "If a majority of the registered
voters voting on a proposed initiative ordinance vote in its favor, it shall be
considered adopted upon certification of the election results and shall be
treated in all respects in the same manner as ordinances of the same kind
adopted by the council."
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body needed to amend a county initiative); Garvin v. Ninth Judicial Dist.
Court, 118 Nev. 749, 763, 59 P.3d 1180, 1189 (2002) ("Nevada's
Constitution reserves to the people the power to propose, by initiative
petition, statutes and amendments to statutes and the constitution, and to
enact or reject them at the polls, and further reserves the initiative and
referendum powers to the registered voters of each county and
municipality as to all local, special and municipal legislation of every kind
in and for the county or municipality.") (citing Nev. Const. art. 19, §§ 2, 4).
Though NRS 295.220 states that municipal initiative
ordinances are treated the same as ordinances adopted by the city council,
the City's interpretation that NRS 295.220 provides that municipal
initiative ordinances can be immediately repealed would contradict the
constitutional protections afforded to voter initiatives. "Where a statute is
susceptible to both a constitutional and an unconstitutional interpretation,
this court is obliged to construe the statute so that it does not violate the
constitution." Whitehead v. Nev. Comm'n on Judicial Discipline, 110 Nev.
874, 883, 878 P.2d 913, 919 (1994). Thus, we hold that the provisions of
NRS 295.220 do not circumvent the three-year legislative moratorium for
municipalities. Instead, NRS 295.220 instructs municipalities as to the
legislative powers they have with respect to initiative-based ordinances
after the three-year moratorium expires. Despite NRS 295.220, the
Nevada Constitution allows voter initiatives to be protected for the three-
year legislative moratorium. Thereafter, a city council can amend, repeal,
set aside, or suspend the initiative as it would any other ordinance.
Here, the City Council enacted both the Conforming
Ordinance and the Banking Ordinance within the three-year moratorium.
The Initiative Ordinance banning new billboards went into effect on
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November 14, 2000, creating a three-year legislative moratorium until
November 14, 2003. The Conforming and Banking Ordinances were
enacted on January 22, 2002, and June 11, 2003, respectively. Because
the City enacted the Conforming and Banking Ordinances within three
years of the Initiative Ordinance's effective date, and the ordinances
amended the meaning of the Initiative Ordinance, the Conforming and
Banking Ordinances are unconstitutional, and therefore void. 4 See Nev.
Power Co. v. Metro. Dev. Corp., 104 Nev. 684, 686, 765 P.2d 1162, 1163-64
(1988) ("When a statute is held to be unconstitutional, it is null and void
ab initio; it is of no effect, affords no protection, and confers no rights.").
B.
Though a statute may be void ab initio, reenactment may cure
the constitutional defect so long as the reenacted bill is free of
constitutional infirmities. See lA Norman J. Singer & J.D. Shambie
Singer, Statutes and Statutory Construction § 22.31 (7th ed. 2009) ("Any
defect in a statute as originally enacted may be cured when the statute is
subsequently reenacted in a bill not subject to the infirmity of the original
bill."); id. § 22.4 ("[T]o validate an unconstitutional act by amendment, the
whole act must be reenacted as amended."); see also Belcher Oil Co. v.
Dade Cty., 271 So. 2d 118, 121 (Fla. 1972) ("The rule in Florida is that all
infirmities or defects in the title of a reenacted statute are cured by
reenactment; and this is true whether the statute has been previously
4 Though the district court's order indicates that the Conforming and
Banking Ordinances were clarifications based on the ambiguity of the
Initiative Ordinance, the City did not make that argument on appeal. See
Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d
1280, 1288 n.38 (2006) (stating this court need not consider claims that
are not cogently argued or supported by relevant authority).
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declared inoperative or not."); People v. Crutchfield, 35 N.E.3d 218, 229
(Ill. App. Ct. 2015) ("When a statute is held unconstitutional because it
was adopted in violation of the single subject rule, the legislature may
revive the statute by reenacting the same provision, but in a manner that
does not offend the single subject rule."); Morin v. Harrell, 164 P.3d 495,
496 (Wash. 2007) (concluding that a challenge to either the "single subject"
rule or the "subject in title" rule "is precluded when the allegedly
constitutionally infirm legislation has been subsequently reenacted or
amended to properly titled legislation. Such amendment or reenactment
cures the [constitutional] defect").
Here, it is undisputed that the Reno City Council enacted the
Confcu ming and Banking Ordinances within the three-year legislative
moratorium, rendering the ordinances void ab initio. However, when the
City Council enacted the 2012 Digital Ordinance—nine years after the
three-year legislative moratorium expired—it reenacted as amended both
the Conforming and Banking Ordinances. See RMC §§ 18.16.902,
18.16.908. As the City Council had the statutory authority to treat the
voters' Initiative Ordinance "in the same manner as ordinances of the
same kind adopted by the council," NRS 295.220, and the Nevada
Constitution did not prohibit any such action as the three-year legislative
moratorium had expired, the 2012 Digital Ordinance was enacted with full
constitutional and statutory authority. Thus, upon reenactment, the
constitutional defects in the Conforming and Banking Ordinances were
cured. Since Scenic Nevada limits the relief it seeks to the prospective
invalidation of the 2012 Digital Ordinance based on antecedent infirmities
in the 2002 and 2003 Conforming and Banking Ordinances, which
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infirmities were cured when the 2012 Digital Ordinance reenacted them
outside the moratorium period, no question arises in this case as to the
impact the interim invalidity of the 2002 and 2003 Conforming and
Banking Ordinances may have on persons who relied on those Ordinances.
See supra note 1.
We hold that the three-year legislative moratorium imposed
under Nevada Constitution Article 19, Section 2(3) for voter initiatives
applies to municipalities through Article 19, Section 4. After the three-
year legislative moratorium expires, NRS 295.220 empowers
municipalities to treat municipal initiative-based ordinances as they
would any other municipal ordinance. Here, though the Conforming and
Banking Ordinances were not validly enacted, their subsequent
reenactment after the three-year legislative moratorium expired validated
them. We therefore affirm, albeit for a different reason than that given by
the district court. See Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126
Nev. 592, 599, 245 P.3d 1198, 1202 (2010).
Pieku a J.
Pickering
We concur:
J.
Parraguirre Hardesty
Saitta Gibbons
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