WINNEMUCCA — The legal firm representing Jungo Land & Investments filed a request on Tuesday seeking to have the Humboldt County Commissioners dismiss the appeal filed by Robert Dolan and Massey Mayo, of Dolan Law Office, in a matter pertaining to a decision made by the Regional Planning Commission.  Dolan and Mayo requested that the Regional Planning Commission revoke the CUP issued to Jungo Land & Investment for the development of a class 1 landfill; or, in the alternative, to have a hearing on the matter.  The planning commission denied the request.  Dolan and Mayo then filed an appeal, and a hearing on the appeal was included on the agenda for Monday's (Nov. 2) meeting.

(For a complete history of the landfill issue, be sure to read the City's Jungo Landfill page.)

The attorney representing Jungo Land & Investments, John Frankovich, of McDonald-Carano-Wilson, filed a response to the appeal on Tuesday, which is featured below in its entirety.

RE:  Jungo Land & Investment, Inc.
Appeal of Regional Planning Commission Decision re: CUP UH-07-05

This request is submitted on behalf of Jungo Land & Investment, Inc. ("Jungo") in connection with the Appeal filed by Robert E. Dolan and Massey K. Mayo of the October 8, 2009 vote by the Humboldt County Regional Planning Commission concerning the Conditional Use Permit issued to Jungo on April 12, 2007.

For the reasons set forth more fully below, Jungo requests that Commissioner Fransway recuse himself or otherwise be disqualified from considering, hearing, or otherwise participating in the above-referenced Appeal and all matters relating thereto including, without limitation, all matters relating to the CUP issued to Jungo for the Jungo Landfill Project ("Project").

On numerous occasions, Commissioner Fransway has publicly stated his opposition to the Project, including words to the effect that he "will do anything he can to stop the project."  He has made these statements even though there has never been a matter presented to the Board of County Commissioners for decision relating to the Project.
Commissioner Fransway's public statements clearly indicate that he has a bias against the Project and is incapable of making a fair and impartial decision on the above-referenced Appeal and other matters relating to the Project.

The County Commission's consideration of the Appeal is a quasi-judicial proceeding.  The Appeal to be considered by the County Commissioners involves a public hearing, evaluation of the facts and the application of the law.  The Appeal involves property rights of Jungo Land and is a contested matter.  The judicial concepts of impartiality and disqualification are applicable to governmental bodies when acting in a quasi-judicial proceeding.  Where a proceeding is judicial or quasi-judicial in nature, disqualification is appropriate where a Board Member has prejudged a case prior to hearing it.  Finally, the courts have recognized that the mere participation by a disqualified member is sufficient to invalidate the tribunal's decision because it was impossible to estimate the influence one member might have on his associates.

Nevada law also recognizes that decisions of County Commissioners in connection with planning matters cannot be arbitrary or capricious.  Generally, decisions that are tainted by bias or blatant favoritism are considered arbitrary and capricious.  This is particularly applicable in this case since Commissioner Fransway's antagonistic comments have been specifically directed toward the Jungo Landfill Project.

A fair and impartial tribunal is fundamental to the right of due process.  It is therefore requested that commissioner Fransway either voluntarily recuse himself or that the District Attorney and other members of the Board of County Commissioners require his disqualification.

John Frankovich

RE:  Jungo Land and Investments, Inc's Request to Dismiss Appeal of Planning Commission's Oct. 8, 2009 Vote on CUP UH-07-05

Jungo Land & Investment, Inc., (Jungo) request that the above-referenced Appeal be dismissed and that the Appeal not be set for further consideration by the County Commission.

The Petitions and Appeal filed by attorneys Robert Dolan and Massey K. Mayo (Petitioners) are not authorized by law.  Jungo's application for a Conditional Use Permit (CUP) was filed in March of 2007 and approved by the Regional Planning Commission on April 12, 2007.  No appeal was taken from that approval.  Under the Humboldt County Code, the decision of the Planning Commission was final.   Thereafter, the CUP cannot be re-reviewed or revoked unless there is a violation of a condition of approval attached to the CUP.

The Petitions and Appeal are collateral attacks upon Jungo's CUP made more than two years after it became final.  An examination of the Petitions clearly establishes that there is not a claim that a condition imposed by the Planning Commission has been violated.  Indeed, no such condition could be violated since the project is still in its approval process and construction has not yet commenced.  In addition, the Planning Commission's vote not to place a revocation hearing on its agenda was a procedural, administrative matter that is not subject to appeal to the Board of county Commissioners.  Finally, Petitioners lack legal standing to challenge the CUP because they are not aggrieved or interested parties.

The Petitioners' contentions are proven baseless by information that is readily available to the public and which the Petitioners continue to ignore.  The issues raised by The Petitioners are largely the subject of the Nevada Division of Environmental Protection's (NDEP) review, which is still ongoing, and are not within the purview of Humboldt County.  The County's ongoing proceedings to entertain the untimely and groundless Petitions infringe upon Jungo's due process rights inherent to having been issued a final CUP.  Because final means final, the County Commission cannot revisit the issuance of the CUP two years after-the-fact.  Accordingly, the Petitioners' purported Appeal must be dismissed and should not be placed on the agenda of the Humboldt county Commission.

1.     The Planning Commission's Issuance ofJungo's Conditional Use Permit Was Final in 2007 and Cannot Now Be Appealed

Jungo's Application for the CUP was filed in March 2007.  County Planning Staff independently reviewed the Application and prepared a detailed Staff Report, including specific findings.  The Planning Commission then held a properly noticed public hearing on April 12, 2007 to review and evaluate the impacts of the project and to hear from the public whether there were any concerns or issues related to the project.  At the public hearing, the Planning Commission asked extensive questions of Jungo and provided opportunity for public comment.  The Planning Commission then issued the CUP subject to conditions, including making Jungo responsible for obtaining all necessary local, state, and federal permits and licenses relating to the project.  In reliance on the CUP, Jungo has expended significant sums on the engineering and design work in support of the applications for those permits.

Chapter 17.68 of the Humboldt County Code sets forth the process by which the Planning Commission considers an application and makes a decision on the issuance of a conditional use permit.  The Code provides that "the decision of the planning commission is final unless appealed and becomes effective five working days after issuance of such decision."  Humboldt County Ordinance 17.68.070 (emphasis added); see 17.68.120.  Because there was no appeal made within five days of the Planning Commission's issuance of Jungo's CUP in April 2007, the CUP became final at that time.  Thereafter, the only basis upon which a CUP can be revoked is for a violation of a condition of the CUP

The Petitions seeking revocation were submitted over two years after the appeal period had expired. The Petitions do not clam a specific violation of a condition of the CUP.  Indeed, no such violation could have occurred since the project is still in the approval process with NDEP.  Instead, Petitioners seek to revisit the initial issuance of the CUP.  As a result, there can be no appeal from the Planning Commission's vote to reject the Petitions. The County Commission, therefore, should dismiss the Appeal without further consideration.

2.     The Planning Commission's Refusal to Hold a Revocation Hearing As Requested by the Fugitive Petitions is Not an Appealable "Decision"

The Appeal must also be disregarded because the Planning Commission's vote not to hold a revocation hearing is not an appealable "decision".  A "decision" under the Humboldt County Code specifically refers to the Planning Commission's resolution regarding a conditional use permit application after a Public Hearing, including findings and conditions set by the Planning Commission.  Humboldt County ordinance 17.68.080.  The appeals process set forth in Chapter 17.68 can only be viewed within the context of that definition.  The only "decision" that is appealable is the Planning Commission's decision granting or denying a conditional use permit application or revoking a permit due to a violation of its conditions.  If the term "decision" were defined any more broadly to include any vote by the Planning Commission, there would be no end to the challenges that the Petitioners could bring and no finality to the CUP.

In connection with the Petitions, the Planning Commission was not required to and, in fact, did not hold a public hearing in making its determination.  While the Planning Commission did allow public comment, there was no noticed public hearing on the Petitions.  When properly analyzed, the action taken by the Planning Commission was a vote which confirmed that they did not find any factual basis to initiate a revocation proceeding or place the matter on a subsequent Planning Commission agenda.  Clearly, this is an administrative action and is not within the purview of Chapter 17.68.

Moreover, the Planning Commission found that there was no evidence of a violation of a condition of the CUP and, thus, no basis to proceed with a revocation proceeding.  The Planning Commission also specifically found that it was not misled by the Application or other comments of Jungo Land.  How can the County Commissioners decide that the Planning Commission was indeed misled when the Planning Commission says it was not misled, and the matter was not presented to the County Commissioners in the first instance?  The whole process makes no sense and is legally unsupported.

The illegitimacy of this process is further underscored by the limited scope of review afforded to the County Commission in the Humboldt County Code.  The Code is clear that, when hearing an appeal of the Planning Commission's decision on a conditional use permit that is appealed within five days of its issuance or denial, the County Commission can only "approve or disapprove" the CUP or "add or delete any of the conditions recommended or required by the planning commission".  Humboldt County Code 17.68.150.  The County Commission has no authority on an appeal (even a timely appeal) to overrule the Planning Commission's determination not to initiate revocation proceedings.  Jungo's CUP became final over two years ago See Humboldt County Code 17.68.070.  The code simply cannot be interpreted to allow for the appeal sought by the Petitioners because the County Commission cannot modify the conditions of a final CUP.  If it could, no CUP would ever be final.

The Planning Commission's October 8, 2009 vote to not agendize the revocation hearing requested by Petitioners was a procedural matter that is not appealable.  To view it otherwise would allow for unlimited "appeals" and render Humboldt County Code 17.68.070 meaningless.  It would also require the Planning Commission and the County Commission to repeatedly revisit their decisions two, five, ten or twenty years after those decisions are made.  The planning process simply cannot function in this matter.  The recipient of a conditional use permit must be able to rely to the finality of the process.

3. The Petitioners Do Not Have Standing to Bring the Petitions or Appeal

As Jungo emphasized in its responses to the two Petitions and reiterates now, the Planning Commission had no authority to act on the Petitions and, therefore, the County Commission has no authority to act now because the Petitioners lacks standing to belatedly challenge the CUP.  The Petitioners are not "aggrieved persons" and submitted the Petitions well beyond the five-day time frame for appeals.  A party is considered "'aggrieved' when either a personal right or right of property is adversely and substantially affected" by  a ruling.  This definition is fairly standard among numerous jurisdictions.

In fact, the 6th Judicial District Court in and for Humboldt County has expressly adopted this standard to determine that a party did not have standing to challenge the grant of a conditional use permit (See Nevada Land and Resource Co., LLC v. Humboldt County Board of County Commissioners.  In Nevada Land and Resource Co., the court held that the owner of the mineral estate lacked standing to challenge the issuance of a conditional use permit to the lessee for mining operations.

Here, Petitioners' connection to Jungo's CUP is far more attenuated.  They have no personal or property right that is implicated by the CUP.  Since the Project is located 28 miles from Winnemucca, the Petitioners do not live or own property in the vicinity of the Project.  To the contrary, Petitioners have no demonstrated interest in the CUP other than that held by the public as a whole.  As a result, they are not "aggrieved" parties under the NRS 278.3195 (1).

For the same reasons, the Petitioners are not "interested" persons, as that term is used in Humboldt County Code 17.68.120.  An "interested person" is defined as:  "A person having a property right in or claim against a thing, such as a trust or decedent's estate" A subjective "interest" in an issue before a public body (as opposed to a legal interest) does not make a member of the public an "interested person" for the purposes of standing.  Otherwise, there would be no limit on standing to challenge a planning decision such as the issuance of a conditional use permit.  It is black letter law that a generalized grievance by a member of public cannot confer standing for the purposes of challenging the CUP.

If the Petitioners did not have standing in the first instance to bring the petitions, they certainly have no standing to appeal the Planning Commission's procedural vote not to hold a revocation hearing.  Indeed, it makes no sense that Petitioners who would not have had standing to appeal the original decision of the Planning Commission in April of 2007 can now manufacture standing by filing untimely Petitions and an Appeal that are without factual support  Since the Petitions lack standing to challenge the CUP that became final over two years ago, the Appeal cannot be considered by the County Commission and should be dismissed without further hearings.

Conclusion

The law does not provide for an "appeal" from the Planning Commission's October 8, 2009 vote to not hold a revocation hearing on Jungo's CUP.  The Petitioners continue to operate outside the ambit of the planning process by launching collateral attacks on Jungo's CUP, which became final over two years ago.  The County Commission should not continue to indulge the Petitioners in their unauthorized and misguided efforts to undermine the legitimacy of the planning process.

By even entertaining the Petitions, the Planning Commission acted beyond its authority.  The County Commission should refrain from perpetuating such procedural and due process irregularities.  Absent any legal grounds to allow an appeal, there is no legal basis to place this matter on the County Commission's agenda.  The Petitioner's Appeal should be dismissed.
John Frankovich