SPROUL HOMES OF NEVADA, A CORPORATION, APPELLANT, v. STATE OF NEVADA, ON RELATION OF ITS DEPARTMENT OF HIGHWAYS AND COUNTY OF CLARK, A POLITICAL SUBDIVISION OF THE STATE OF NEVADA, RESPONDENTS.
No. 10513
Supreme Court of Nevada
May 15, 1980
611 P.2d 620 | 96 Nev. 441
Although the Supreme Court has not specifically addressed the аpplicable standard of proof in probation revocation hearings, its opinion in Gagnon v. Scarpelli, 411 U.S. at 789-90, n.12, indicates that the Court believes that probation could be revoked on less than a beyond a reasоnable doubt standard. Here the court thought it was obvious that appellant was selling or possessing narcotics. We will not disturb the trial court‘s discretion in the absence of a clear showing of abuse.
We affirm the order revoking probation.
MOWBRAY, C. J., and THOMPSON and BATJER, JJ., concur.
GUNDERSON, J., concurring:
I concur in the result.
Morris and Wood, Las Vegas, for Appellant.
Robert Miller, District Attorney, and Melvin R. Whipple, Deputy District Attorney, Clark County, for Respondеnt County of Clark.
OPINION
By the Court, MANOUKIAN, J.:
In June 1977, plaintiff-appellant Sproul Homes, instituted an action in inverse condemnation for damages asserted to have been occasioned by alleged precondemnation activities of the respondents herein, County of Clark and the State of Nevada on relation of its Department of Highways. Both the state and Clark County filed motions to dismiss appellant‘s complaint on thе ground that it failed to state a claim for relief.
The main issue before us is whether the complaint sufficiently sets forth a cause of action for relief in inverse condemnation. We hold that it does not, and affirm the order of dismissal.
Sproul is a Nevada corporation which is engaged in the acquisition of large parcels of land for the purpose of subdividing, improving and selling single-family residences. The complaint alleges that sometime in the early 1950s “the defendants
Appellant contended below, as it does here, that the limitations on the use of its land cоnstitutes an unconstitutional taking of property without just compensation for which an action in inverse condemnation will lie.
It is well-established that the mere planning of a project is insufficient to constitute a taking for which an inverse condemnation action will lie. Selby Realty Co. v. City of San Buenaventura, 514 P.2d 111, 116 (Cal. 1973); Bakken v. State, 382 P.2d 550, 551-52 (Mont. 1963); City of Buffalo v. J. W. Clement Co., 269 N.E.2d 895, 904 (N.Y. 1971); Thurow v. City of Dallas, 499 S.W.2d 347, 348 (Tex.Civ.App. 1973). In Selby Realty Co., the City of San Buenaventura and the County of Ventura adopted a general plan for the long-term development of the city and county. A Cаlifornia statute required that the city and county publish the general location of existing and proposed streets. The publication revealed a proposed extension of certain streets over the plaintiff‘s land. The plaintiff filed an action in inverse condemnation contending that the general plan showed certain proposed streets extending through its property and that no cоmpensation had been offered for any of the plaintiff‘s land upon which the proposed streets would be located. The trial court sustained a demurrer to the plaintiff‘s claim. Plaintiff failed to amend and judgment was entered. Selby Realty Co. v. City of San Buenaventura, 514 P.2d at 114-15. On appeal, the court stated: “In order to state a cause of action for inverse condemnation, there must be an invasion or an appropriation of somе valuable property right which the landowner possesses and the invasion or appropriation must directly and specially affect the landowner to his injury.” Id. at 117. The court continued:
If a governmental entity and its responsible оfficials were held subject to a claim for inverse condemnation merely because a parcel of land was designated for potential public use on one of these several authоrized plans, the process of community planning would either grind to a halt, or deteriorate to publication of vacuous generalizations regarding the future use of land. We indulge in no hyperbole to suggest that if every landowner whose property might be affected at some vague and distant future time by any of these legislatively permissible plans was entitled to bring an action in declaratory relief to obtain a judicial declaration as to the validity and potential effect of the plan upon his land, the courts of this state would be inundated with futile litigation.
Id. at 117-18 (emphasis added). We agree with this reasoning.
Clearly, not every decrease in market value as a result of precondemnation activity is compensable. Nevertheless, when the precondemnation activities of the government are unreasonable or oppressive and thе affected property has diminished in market value as a result of the governmental misconduct, the
In the present case, as in Selby, there has been no invasion or appropriation of Sproul‘s property. Beyond the clаimed entry for the purpose of surveying and appraising, there is no allegation of a physical invasion of its land. Nor is there any showing of finality regarding the state‘s proposed project. Indeed, thеre is no allegation that appellant‘s property will definitely be acquired for highway purposes. As in Selby, the state has placed no legal or physical obstacles in the path of Sproul in its use of the land. Additionally, appellant has failed to allege dates of claimed governmental activities, the reference to plans is vague, and there is no reference to resolutions by the Nevada Department of Highways, the condemning authority. Moreover, there is no factual allegation of undue or unreasonable delay, nor is there sufficient factual averment relating to bad faith оr oppressive conduct on the part of the government. Cf. Klopping v. City of Whittier, 500 P.2d 1345 (Cal. 1972) (government engaged in oppressive conduct in attempting to acquire property).
We also find that the complaint is replete with generalizations and conclusory matter. Appellant also sets forth a number of potentially relevant factual allegations in its briefs which cannot reasonably be inferred from the complаint. It is arguable that those additional allegations could be construed as indicative of oppressive conduct on the part of respondent state. But, “[t]his court can only consider the record as it was made and considered by the court below.” Lindauer v. Allen, 85 Nev. 430, 433, 456 P.2d 851, 852 (1969). It is clear to us, under all of the circumstances, that appellant has not stated a cause of action against the respondents for inverse condemnation. Because of the posture of this case, we do not reach the question of appellant‘s entitlement to compensation in the event that any zoning or other actiоn precluded substantially all use of the land in question.
Finally, appellant contends that the Clark County Commission abused its discretion when it denied the zoning request and building permits. Clark County‘s refusal to grant the building permits or chаnge zoning is only peripherally at issue here. If appellant can establish that the Commission acted arbitrarily or that its action was accompanied by manifest abuse, judicial interference by mаndamus, and not by inverse condemnation, would be warranted. State ex rel. Johns v. Gragson, 89 Nev. 478, 482, 515 P.2d 65, 68 (1973). See Agins v. City of Tiburon, 598 P.2d 25 (Cal. 1979) (holding that inverse condemnation is an inappropriate remedy in cases in which unconstitutional regulation is alleged). Cf. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979) (cause of action sufficiently alleged, showing Supreme Court‘s continuing adherence to the mandate of the fifth and fourteenth amendments).
We affirm the lower court‘s orders dismissing appellant‘s complaint.
MOWBRAY, C. J., and THOMPSON and BATJER, JJ., concur.
GUNDERSON, J., concurring:
I concur in the result.