Professional Documents
Culture Documents
Attorneys For Plaintiffs-Petitioners
Attorneys For Plaintiffs-Petitioners
Electronically
CV20-01687
2020-10-21 01:16:55 PM
1 $1425 Jacqueline Bryant
Jarrad C. Miller, Esq. (NV Bar No. 7093) Clerk of the Court
Transaction # 8126539 : yviloria
2 Samantha J. Reviglio, Esq. (NV Bar No. 14258)
ROBERTSON, JOHNSON, MILLER & WILLIAMSON
3 50 West Liberty Street, Suite 600
Reno, Nevada 89501
4 Telephone No.: (775) 329-5600
Facsimile No.: (775) 348-8300
5 [email protected]
[email protected]
6 Attorneys for Plaintiffs-Petitioners
17 Plaintiffs-Petitioners,
18 vs.
28 MARIO FRUGOLI, MARCIA FRUGOLI, JOHN BIRD, GINA BIRD, JOHN JEFFREY,
Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 1
Reno, Nevada 89501
1 GRANT GARRISON, WARREN STOKES, JAMES FERRIS, ROBERT F. GEORGETON,
2 NANCY BEUTEL, and MARVICE BEUTEL (collectively “Plaintiffs”), by and through their
3 undersigned counsel of record, Jarrad C. Miller, Esq. and Samantha J. Reviglio, Esq. of the law
4 firm of ROBERTSON, JOHNSON, MILLER & WILLIAMSON, and hereby allege the
5 following:
6 PARTIES
7 1. Plaintiffs Ryan and Tami Wittich are residents of Sparks, Nevada and are the
8 owners of the real property and residence located at 2110 Ponderosa Dr., Sparks, Nevada.
9 2. Plaintiffs Alferd and Katherine Knepper are residents of Sparks, Nevada and are
10 the owners of the real property and residence located at 2106 Ponderosa Dr., Sparks, Nevada.
11 3. Plaintiffs Carlos and Samantha Gonzalez are residents of Sparks, Nevada and are
12 the owners of the real property and residence located at 2114 Ponderosa Dr., Sparks, Nevada.
13 4. Plaintiffs Mario and Marcia Frugoli are residents of Sparks, Nevada and are the
14 owners of the real property and residence located at 2104 Ponderosa Dr., Sparks, Nevada.
15 5. Plaintiffs John and Gina Bird are residents of Sparks, Nevada and are the owners
16 of the real property and residence located at 2105 Ponderosa Dr., Sparks, Nevada.
17 6. Plaintiff John Jeffrey is a resident of Sparks, Nevada and is the owner of the real
19 7. Plaintiff Grant Garrison is a resident of Sparks, Nevada and is the owner of the
20 real property and residence located at 2100 Ponderosa Dr., Sparks, Nevada.
21 8. Plaintiff Warren Stokes is a resident of Sparks, Nevada and is the owner of the
22 real property and residence located at 2225 Ponderosa Dr., Sparks, Nevada.
23 9. Plaintiff James Ferris is a resident of Sparks, Nevada and is the owner of the real
25 10. Plaintiff Robert F. Georgeton is a resident of Sparks, Nevada and is the owner of
26 the real property and residence located at 1989 Ponderosa Dr., Sparks, Nevada.
27 11. Plaintiffs Nancy and Marvice Beutel are residents of Sparks, Nevada and are the
28 owners of the real property and residence located at 2186 Capurro Way, Sparks, Nevada.
Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 2
Reno, Nevada 89501
1 12. Defendant Safe Embrace is a Nevada nonprofit corporation doing business in the
2 State of Nevada and is the owner and operator of the property located at 1995 Ponderosa Drive,
3 Sparks, Nevada (“the Property”). The Property is used as a shelter for domestic violence
4 victims, who may move into the Property on a temporary basis for up to 90 days. See
6 Property on July 10, 2019. Upon information and belief, Safe Embrace previously did business
9 subdivision of the State of Nevada. Under the provisions of NRS Chapter 278 and the Washoe
10 County Code, Washoe County is charged with the duty to administer, receive and review issues
11 related to building, land use, and zoning through its various departments.
13 the State of Nevada. Under the provisions of NRS Chapter 278 and the Sparks Municipal Code,
14 Sparks is charged with the duty to administer, receive and review issues related to building, land
16 15. The true names and capacities, whether individual, corporate, associate or
17 otherwise of Defendants DOES I through X, inclusive, and each of them, are unknown to
18 Plaintiffs at this time, who sue said Defendants by such fictitious names, and when the true
19 names and capacities are ascertained, Plaintiffs will amend this Complaint.
21 16. This Court has subject matter jurisdiction over this action under Article 6, §6 of
23 17. Venue is proper in this Court pursuant to NRS 13.010, NRS 13.030, and NRS
24 13.040.
25 18. This Court has jurisdiction for purposes of declaratory relief in this action
27 19. This Court has jurisdiction to issue a writ of mandamus pursuant to NRS 34.150
28 et seq.
Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 3
Reno, Nevada 89501
1 FACTUAL ALLEGATIONS
2 A. Defendant Safe Embrace’s Property Violates the Deed Restrictions that Protect All
4 20. This lawsuit involves property owned by certain Plaintiffs and Defendant Safe
5 Embrace located on Ponderosa Drive, a private dead-end street within P.J. Kelly’s Ranch
6 Subdivision, in Sparks, Nevada, as shown on Washoe County Assessor’s Map Number 026-42.
7 21. P.J. Kelly’s Ranch Subdivision is situated in Sparks, Nevada and is a subdivision
8 of lands comprised of mostly one-acre lots largely improved for private single-family residences.
9 22. The creators of P.J. Kelly’s Ranch Subdivision, in order to induce the purchase of
10 lots in the tract for residences, and to maintain the tract as a desirable single-family residential
11 district, adopted a general scheme for the restriction of the improvement of the lots and of the use
13 23. Plaintiffs and Defendant Safe Embrace have taken title to their respective parcels
14 of land under conveyances containing similar deed restrictions, as have all other purchasers of
16 24. Specifically, the Property is subject to the covenants and restrictions (“Deed
17 Restrictions”) set forth in the Joint Tenancy Deed duly recorded with the Washoe County
18 Recorder’s Office as document number 330617, a copy of which is attached hereto as Exhibit 1
20 25. The Deed Restrictions are expressly stated to be perpetually binding upon any
22 26. The Deed Restrictions are enforceable by any person owning land in P.J. Kelly’s
23 Ranch Subdivision.
24 27. Defendant Safe Embrace had actual notice of the Deed Restrictions recorded at
26 28. Defendant Safe Embrace also had constructive notice of the Deed Restrictions,
27 because the restrictions are suggested by the uniform appearance of the subdivision, consisting of
2 shall at any time be used for business or commercial purposes.” See Exhibit 1.
3 30. Defendant Safe Embrace violated the first deed restriction by applying for and
4 obtaining a Washoe County Business License in connection with the use of the Property. Upon
5 information and belief, Defendant Safe Embrace represented on its business license application
6 that it was a “Group Care Facility,” and that it was requesting permission to increase its number
8 31. The fifth deed restriction provides that “[n]o multiple family residences shall at
10 32. In 2019, Defendant Safe Embrace violated the fifth deed restriction by
11 constructing a 1,924 square-foot addition to the Property, which included four bedrooms (with
12 13 beds), and converted the use and structure into a multi-family residence.
13 33. Plaintiffs did not receive notice or an opportunity to object to Defendant Safe
15 34. Nonetheless, prior to the start of the construction, Plaintiffs Alferd and Katherine
16 Knepper (“the Kneppers”) informed Safe Embrace’s then-director, John Etchemendy, that
17 performing this construction and operating and maintaining a multi-family residence on the
19 35. Certain Plaintiffs have also contacted Defendant Safe Embrace and requested that
20 it cease its prohibited use of the Property. All efforts on the part of Plaintiffs to persuade
21 Defendant Safe Embrace to comply with the Deed Restrictions have been rejected.
22 36. At all relevant times, the prohibited use of the Property has unreasonably
23 interfered with Plaintiffs’ quiet enjoyment of their homes, diminished the value of Plaintiffs’
24 property, and damaged the private road through excessive usage of Ponderosa Drive.
25 37. The specified acts of Defendant Safe Embrace are in direct violation of the Deed
26 Restrictions on the Property and will, unless enjoined by this court, cause Plaintiffs irreparable
27 injury in (i) Plaintiffs’ loss of the use and enjoyment of their properties, (ii) Plaintiffs’ ongoing
28
Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 5
Reno, Nevada 89501
1 safety concerns, and (iii) the diminution of the value of Plaintiffs’ properties as a direct result of
3 B. The City of Sparks Did Not Follow Proper Procedure and Knowingly Made Improper
4 Approvals.
5 38. On January 9, 2017, Safe Embrace’s director at the time, John Etchemendy, gave
6 a PowerPoint presentation during a Sparks City Council meeting, wherein he expressed the need
7 for more beds and told the city officials that they could assist Safe Embrace by donating or
8 leasing a building to Safe Embrace to use as a drop-in emergency shelter for victims of domestic
9 violence. The last slide of the PowerPoint presentation included the below illustration of a
10 motel-like building that would later become the addition on the Property (the “Addition”).
11
12
13
14
15
16
17 39. On or about November 21, 2017, Safe Embrace filed a development application
19 40. On the development application, Safe Embrace acknowledged that the Property
20 was zoned “E-1” and represented that its existing use was as a “Group Home.” At that time, the
21 Property was a 2,131 square-foot single family residence with five bedrooms.
23 residential construction and build a separate 1,923 square-foot motel-like addition on the
24 Property to include four additional bedrooms and four additional bathrooms. This construction
25 would increase the total amount of square footage of the Property by approximately 90%, would
26 increase the total number of bedrooms at the Property to nine bedrooms, and would convert the
28
Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 6
Reno, Nevada 89501
1 42. The use of the Property fits squarely within the category of use for “social
2 assistance, welfare, and charitable services.” Such use is not permitted in the zoning district
4 43. Nonetheless, on about January 21, 2018, the City of Sparks approved Safe
5 Embrace’s request to construct a 1,923 square-foot addition at the Property, subject to certain
6 conditions.
7 44. Because the proposed Addition would increase the square footage of the Property
8 by ninety percent (90%), Safe Embrace should have had to apply for a conditional use permit.
9 45. An application for a conditional use permit would have triggered notice to each
10 owner of real property located within 500 feet of the Property in question, and an opportunity to
11 be heard at a public hearing in front of the Planning Commission before a decision was made.
13 46. Instead, the City of Sparks made zoning decisions which profoundly affected the
14 property rights of Plaintiffs and other community members. These decisions had a significant
15 negative impact on property values, the character of the neighborhood, and the future quality of
16 community life without providing the opportunity for full and open discussion of the proposed
17 zoning decisions.
18 47. The approval of the development application was made by administrative review,
20 48. The purpose and intent of an Administrative Plan Review is to determine whether
21 the proposed use, building, structure, addition, or change to any building, structure, or use will
22 conform to the zoning ordinance, building, and fire codes and other applicable ordinances and
23 requirements of the city. Administrative review is only appropriate when a conditional use
25 49. The City of Sparks feigned ignorance to certain information applicable to the
26 application which would have resulted in a denial of the application (i.e. length of stay).
27 Attached hereto as Exhibit 2 and incorporated herein by reference, is a true and correct copy of a
28
Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 7
Reno, Nevada 89501
1 document indicating such. This document was received as a result of a public records request to
3 50. On or about February 28, 2018, Sierra Builders submitted a building permit
4 application to Washoe County for the construction of the Addition. Washoe County sent the
6 51. Upon information and belief, at all times relevant hereto, Ed Lawson was a
7 Sparks City Councilman and the vice president of business development of Sierra Builders.
8 52. On March 8, 2018, Karen Melby, Senior Planner for Sparks, approved the
9 building permit related to the new construction at the Property, finalizing Sparks’ approval of the
10 new construction. This approval was made by administrative review, without public hearing or
12 53. In September 2018, the Kneppers noticed construction occurring at the Property
14 54. On September 18, 2018, the Kneppers spoke with Karen Melby, Senior Planner
15 for Sparks, and Alyson McCormick, Sparks’ Assistant City Attorney, about the unknown
16 construction project at the Property. At this time, the Kneppers relayed their concerns that the
17 proposed construction at the Property would cause the Property to house more than 10
18 occupants, which would effectively change the Property from a “Group Home” to a “Group Care
19 Facility,” which was illegal under the Sparks Zoning Code and the Property’s Deed Restrictions.
20 Ms. Melby and Ms. McCormick assured the Kneppers that Sparks’ approval of the new
21 construction at the Property did not change the Property’s zoning or use and that it was merely
23 55. On November 2, 2018, Plaintiff Alferd Knepper spoke with Bob Webb, the Head
24 of Planning for Washoe County. Mr. Webb assured the Kneppers that the Property could only be
25 used as a “Group Home,” not as a “Group Care Facility,” which meant that no more than ten or
26 fewer persons not defined as a family, plus a caregiver and caregiver’s family, could live there.
27 Mr. Webb further stated that if the Property’s occupancy exceeded the occupancy allowed by the
28 WCDC, then Washoe County Code Enforcement would enforce WCDC § 110.304.15(c) and
Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 8
Reno, Nevada 89501
1 prevent the Property from being used as a “Group Care Facility.” Mr. Webb further stated to
2 Petitioners that if Safe Embrace wished to operate a “Group Care Facility” at the Property, they
4 56. Petitioners reasonably relied upon the above alleged representations from Sparks
5 and Washoe County employees and representatives that the Property would only be operated as a
7 57. At the start of construction of the Addition, the Kneppers informed Safe
8 Embrace’s director at the time, John Etchemendy, that performing this construction and
9 maintaining and operating a multi-family residence on the Property would cause the Property to
10 violate zoning codes and the Deed Restrictions applicable to the Property.
11 58. On about November 21, 2018, Defendant Safe Embrace applied for a Washoe
12 County Business License. On its application, Defendant Safe Embrace represented that it was a
13 “Group Care Facility,” and requested permission to increase its number of beds from 9 to 32.
16 application, the Property’s Land Use designation was changed from “200 – Single Family
17 Residence” to “330 – Five to Nine Units.” Additionally, the Washoe County Assessor’s website
18 indicates the building type was changed from single family residence to multi residence (low
19 rise).
20 60. Petitioners, frustrated that Sparks had made multiple misrepresentations and
22 construction of the Addition – which greatly affected their use and enjoyment of their property
23 and their property values – appeared before the Sparks City Council and gave a presentation
24 about the issues with the Property during the time allotted for public comment on July 8, 2019.
25 After the presentation, Mayor Ron Smith asked Neil Krutz, Sparks’ City Manager, to follow up
27 //
28 //
Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 9
Reno, Nevada 89501
1 61. On July 17, 2019, Karen Melby issued the Certificate of Occupancy for the
2 Property, which states that there were “15 beds in existing dwelling and 13 beds in [the] new
3 addition.”
4 62. After several meetings with Sparks’ administrators, the Kneppers met with the
5 Mayor of the City of Sparks, Ron Smith, as well as Sparks’ City Manager, Neil Krutz, on August
6 29, 2019. At that meeting, Mayor Ron Smith stated that the approval of Safe Embrace’s
8 63. Thereafter, on October 9, 2019, Sparks’ City Manager Neil Krutz sent a letter to
9 the Interim Washoe County Manager David M. Solaro explaining that the City of Sparks’
10 planning staff approved the business license in error. A copy of this letter is attached hereto as
14 64. Zoning for the Property is now governed by the Washoe County Development
15 Code (“WCDC”), but was previously governed by the Sparks Zoning Code (“SZC”). Sparks
16 held planning control and exercised extra-territorial jurisdiction over the Property through the
17 protocol agreement between Sparks and Washoe County pursuant to NRS 278.02788.
18 65. At all relevant times, the Property was zoned as “E-1,” a residential zoning
19 designation according to the WCDC. “E-1” zoning is a pre-1993 zoning designation and is
21 66. Because the Property is located in a residential zone, the use of the Property is
22 limited to “Residential Use Types,” unless a special use permit is obtained. WCDC §
23 110.304.15.
24 67. One permissible “Residential Use Type” for the Property is a “Group Home.”
25 WCDC § 110.304.15(c).
26 68. A “Group Home” is a single-family dwelling of ten or fewer persons not defined
28
Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 10
Reno, Nevada 89501
1 69. A “Group Home” is a separate and distinct use type from a “Group Care Facility.”
2 WCDC § 110.304.20(h).
3 70. A “Group Care Facility” is defined, inter alia, as an establishment that provides
4 housing for more persons than permitted in a “Group Home.” WCDC § 110.304.20(h).
5 71. Upon information and belief, Defendant Safe Embrace operated as a Group Home
6 until construction of the Addition was completed in 2019. The certificate of occupancy shows
7 the Addition included 13 additional beds. Clearly, with the Addition, the Property now exceeded
9 72. A “Group Care Facility” is a “Civic Use Type,” not a “Residential Use Type.”
11 73. A property with “E-1” zoning is residential. “Group Homes” are allowed in
12 residential zoning areas, but “Group Care Facilities” require a Special Use Permit to be issued by
14 74. Upon information and belief, Defendant Safe Embrace has never applied for or
15 received a Special Use Permit to operate a Group Care Facility pursuant to WCDC § 110.810.00
16 et seq.
17 75. Plaintiffs request that an alternative writ of mandamus issue mandating Washoe
18 County to compel Defendant Safe Embrace to apply for a Special Use Permit in accordance with
19 the Washoe County Development Code, which would trigger notice to Plaintiffs and an
22 76. On January 15, 2020, the Kneppers hired an attorney, who sent a letter to the City
23 of Sparks identifying the above alleged illegal uses and improper permitting associated with the
24 Property.
25 77. On February 3, 2020, Sparks responded to the letter stating the Property had been
26 removed from Sparks’ sphere of influence, and therefore, Sparks no longer had any authority to
27 take action with respect to the Property. The letter further stated that only Washoe County has
2 related to the use and zoning violations on the Property. The Kneppers were never contacted
3 about their complaint. The Kneppers later called to inquire about the status of the complaint and
6 Advisory Committee meeting. The purpose of this meeting was to discuss the parcels on
7 Ponderosa Drive being returned to the County’s sphere of influence. The Kneppers gave a
8 presentation at this meeting about the improper zoning and use of the Property and requested that
10 80. On March 3, 2020, the Kneppers attended the Washoe County Planning
11 Commission meeting about the Sphere of Influence change and gave a presentation about the
13 81. On March 10, 2020, the Kneppers sent an email to be read at the County
15 82. On March 16, 2020, the Kneppers met with Dave Solaro, the Assistant County
16 Manager, to discuss their efforts to date to obtain relief related to the violation of their due
17 process rights to notice and an opportunity to be heard regarding the conversion of the Property.
18 83. In response, Washoe County sent a letter to the Kneppers dated April 24, 2020,
19 stating that it did not have authority “to change the current approval from the City of Sparks
20 related to the property located at 1995 Ponderosa Drive . . . .” Washoe County further stated that
21 it “is required to accept any legally-established uses on the property for planning purposes.”
22 84. Most recently, on August 20, 2020, the Kneppers and Tami Wittich had a meeting
23 with attorney Ken Ching, Dave Solaro and Nathan Edwards from Washoe County, Alyson
24 McCormick and another unidentified individual from Sparks. No further action has been taken
26 85. Petitioners have also contacted Safe Embrace and requested that Safe Embrace
27 cease its illegal use of the Property as a Group Care Facility. Safe Embrace has refused to
2 in compliance with the County Landscaping Code for Group Care Facilities.
3 87. Defendants Sparks and Washoe County have not properly held the required public
4 hearings, depriving the Petitioners of the opportunity to exhaust any administrative remedies.
6 ordinary course of law, as both the City of Sparks and Washoe County have refused to act to
7 correct the illegal permitting, zoning, and use with respect to the Property. Further, Sparks has
8 now denied that it has any authority to act with regard to the Property, and Washoe County
10 89. At all relevant times, the illegal operation of a Group Care Facility at the Property
11 has unreasonably interfered with Petitioners’ quiet enjoyment of their homes, diminished the
12 value of Petitioners’ property, and severely damaged the private road through excessive usage of
13 Ponderosa Drive.
16 90. Plaintiffs incorporate by this reference, as though fully set forth herein, each and
18 91. Defendant Safe Embrace, in purchasing the Property, is bound by the restrictions
19 in the Joint Tenancy Deed duly recorded with the Washoe County Recorder’s Office prior to
21 92. Defendant Safe Embrace had both actual and constructive notice of the Deed
22 Restrictions.
23 93. Defendant Safe Embrace has violated the express Deed restrictions by using a part
25 94. Defendant Safe Embrace has violated the express Deed Restrictions by operating
27 95. Plaintiffs, as property owners in P.J. Kelly’s Subdivision, are the beneficiaries of
28 the Deed Restrictions, and are therefore entitled to enforce the Deed Restrictions.
Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 13
Reno, Nevada 89501
1 96. Plaintiffs have no plain, adequate, or speedy remedy at law with respect to
2 Defendant Safe Embrace’s violations of the Deed Restrictions and will be irreparably injured if
4 97. Monetary damages alone cannot provide adequate compensation for the harm
5 suffered by Plaintiffs.
6 98. Plaintiffs respectfully request this Court issue a Permanent Injunction and
7 Mandatory Injunction requiring Defendant Safe Embrace to modify its use of the home such that
8 the home satisfies and comes within the enforceable covenants and restrictions set forth in the
12 99. Plaintiffs incorporate by this reference, as though fully set forth herein, each and
14 100. An actual controversy has arisen and now exists between Plaintiffs and Defendant
15 Safe Embrace in that Plaintiffs contend, and Defendant Safe Embrace denies, that the Property
17 101. Plaintiffs desire a judicial determination of the respective rights and duties of
18 Plaintiffs and Defendant Safe Embrace with respect to Defendant Safe Embrace’s violation of
19 the Deed Restrictions. In particular, Plaintiffs desire the declaration that Defendant Safe
20 Embrace has violated the Deed Restrictions and that the Property must comply with the at-issue
22 102. Such declaration is necessary and appropriate at this time in order for Plaintiffs to
26 103. Plaintiffs incorporate by this reference, as though fully set forth herein, each and
28
Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 14
Reno, Nevada 89501
1 104. Defendant Safe Embrace’s violations of the Deed Restrictions constitute an
3 105. Defendant Safe Embrace’s actions have caused substantial and unreasonable
5 106. Even if Safe Embrace’s Group Care Facility were permitted in P.J. Kelly’s Ranch
6 Subdivision, which it is not, Defendant Safe Embrace has failed to install or maintain its
8 107. Even if Safe Embrace’s Group Care Facility were permitted in P.J. Kelly’s Ranch
9 Subdivision, which it is not, Defendant Safe Embrace has failed to contribute to the maintenance
10 of Ponderosa Drive, which has been excessively damaged by the substantially increased vehicle
12 108. Even if Safe Embrace’s Group Care Facility were permitted in P.J. Kelly’s Ranch
13 Subdivision, which it is not, Defendant Safe Embrace does not have sufficient parking spaces for
14 all individuals who are working, visiting, or staying at the Property. Both side yards of the
16 109. Fences on both sides of the Property have been damaged by the unlawful
17 construction and have not been repaired, even after the issue was raised with Safe Embrace.
18 110. The noise on the property has increased dramatically with up to 32 people
19 working, visiting or living at the Property at any given time. Moreover, Safe Embrace maintains
20 a dog kennel with multiple stalls for their occupants’ dogs, which frequently bark at all hours of
21 the night.
22 111. Defendant Safe Embrace’s unlawful use of the Property violates the Deed
23 Restrictions, deprives Plaintiffs of the use and quiet enjoyment of their properties, and
25 112. Additionally, Plaintiffs have been forced to employ the undersigned attorneys to
26 prosecute this action. Plaintiffs have incurred, and will continue to incur, attorneys’ fees and
28 //
Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 15
Reno, Nevada 89501
1 FOURTH CLAIM FOR RELIEF
3 113. Plaintiffs incorporate by this reference, as though fully set forth herein, each and
5 114. Upon information and belief, all the properties in P.J. Kelly’s Subdivision are
7 115. Upon purchase of the property, Defendant Safe Embrace had a duty to comply
9 116. Plaintiffs, as property owners in P.J. Kelly’s Subdivision, are the beneficiaries of
10 the Deed Restrictions, and are therefore entitled to enforce those covenants and restrictions.
15 violated the Deed Restrictions by using the Property for business or commercial purposes.
17 violated the Deed Restrictions by using the Property for multi-family purposes.
18 120. By violating the Deed Restrictions, Defendant Safe Embrace has proximately
20 121. Additionally, Plaintiffs have been forced to employ the undersigned attorneys to
21 prosecute this action. Plaintiffs have incurred, and will continue to incur, attorneys’ fees and
25 122. Plaintiffs incorporate by this reference, as though fully set forth herein, each and
27 123. The United States and Nevada Constitutions guarantee all persons due process.
28
Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 16
Reno, Nevada 89501
1 124. The Fifth Amendment of the United States Constitution provides that “No person
2 shall. . . be deprived of . . . property, without due process of law.” The Fourteenth Amendment
3 provides in pertinent part “. . . nor shall any state deprive any person of . . . property, without due
4 process of law.”
5 125. Plaintiffs hold a liberty and/or property interest protected by the United States
6 Constitution, including, but not limited to, Plaintiffs’ enjoyment of their properties.
9 127. The City of Sparks wrongfully deprived Plaintiffs of their liberty and/or property
10 interests.
11 128. The City of Sparks failed to employ a reasonable, lawfully appropriate process
12 and failed to provide Plaintiffs with an opportunity to be heard in a meaningful manner by, inter
13 alia, failing to follow applicable law, codes, or ordinances; approving Safe Embrace’s
14 development and/or building application without notice to the neighboring properties; and
15 allowing Safe Embrace to expand its use to a Group Care Facility without a conditional use
16 permit.
17 129. The City of Sparks knew its actions were unlawful, but ignored the laws, codes,
19 130. The City of Sparks made decisions in an irrational, arbitrary, and capricious
20 manner which deprived Plaintiffs’ protected property interests in violation of legally mandated
21 standards and thereby have deprived Plaintiffs of due process under the law in violation of the
23 131. A valid case and controversy exists sufficient for this Court to declare the rights
24 and remedies of the parties, in that the record demonstrates that the City of Sparks improperly
25 granted several applications that deprived Plaintiffs of due process under the law in violation of
27 132. A valid case and controversy exists sufficient for this Court to declare the rights
28 and remedies of the parties in that, under the Sparks Zoning Code, Washoe County Development
Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 17
Reno, Nevada 89501
1 Code and/or applicable Nevada law, Plaintiffs were entitled to notice and an opportunity to be
2 heard at a public hearing on the proposed substantial changes to the use and zoning of the
3 Property.
4 133. A judicial declaration pursuant to NRS 30.010 et seq. is necessary and appropriate
5 at this time for the Court to determine the constitutionality and lawfulness of Sparks’ approvals
9 134. Plaintiffs incorporate by this reference, as though fully set forth herein, each and
11 135. Around March 2020, the Property was transferred into Washoe County’s sphere
12 of influence and is now subject to Washoe County’s zoning and development codes.
13 136. Washoe County conveyed to the Kneppers that they will adopt the zoning
15 137. Plaintiffs have no plain, speedy, and adequate remedy in the ordinary course of
16 law.
18 Washoe County to take the necessary steps to prevent the Property from being used as a Group
19 Care Facility and to restore the Property to its correct use and zoning as a single-family
20 residence.
22 Washoe County to revoke the business license applied for by Safe Embrace on November 21,
23 2018, by which Washoe County has permitted Safe Embrace to operate a Group Care Facility at
24 the Property. This business license has permitted Safe Embrace to operate a “Group Care
25 Facility” at the Property contrary to the Washoe County Development Codes, which do not allow
26 Group Care Facilities in residential neighborhoods without a special use permit. WCDC, Table
28 //
Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 18
Reno, Nevada 89501
1 SEVENTH CLAIM FOR RELIEF
3 140. Plaintiffs incorporate by this reference, as though fully set forth herein, each and
5 141. Generally, the proper procedure to challenge zoning and planning decisions is
6 through a petition for judicial review. Kay v. Nunez, 112 Nev. 1100, 146 P.3d 801 (2006).
7 142. However, as described herein, the City of Sparks failed to follow the proper
8 procedures and deprived the Petitioners of notice and their opportunity to be heard on the issues
9 described herein that significantly affected the value of their property and their right to quiet
11 143. The City of Sparks denied the Kneppers’ multiple requests to correct the unlawful
13 144. Conveniently, the Property was recently removed from the City of Sparks’ sphere
14 of influence, and the City of Sparks has now disclaimed any lawful authority over the Property.
15 145. Accordingly, Plaintiffs have no plain, speedy, and adequate remedy in the
17 146. “The writ may be issued by . . . a district court or a judge of the district court, to
18 compel the performance of an act which the law especially enjoins as a duty resulting from an
22 148. Petitioners request an alternative writ of mandamus issue compelling the City of
23 Sparks to rescind the improper approvals of any permitting, zoning changes, and/or use changes
26 Wherefore, Plaintiffs pray for judgment against the Defendants and each of them, as
27 follows:
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Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 19
Reno, Nevada 89501
1 1. For a declaration from this Court that Defendant Safe Embrace’s use of the
3 2. For a declaration from this Court that Defendant City of Sparks deprived
4 Plaintiffs of their due process rights of notice and the opportunity to be heard;
5 3. For a permanent injunction enjoining Defendant Safe Embrace from using the
7 4. For a permanent injunction enjoining Defendant Safe Embrace from using the
9 5. That this Honorable Court order the Clerk of the Court to issue an alternative writ
10 of mandamus directed to Respondent Washoe County, stating that Petitioners allege in their
11 Petition for Writ of Mandamus and Declaratory Relief that Washoe County wrongfully granted
12 Defendant Safe Embrace’s business license, and that Washoe County shall revoke the business
13 license allowing Safe Embrace to operate a group care facility, or, in the alternative, Respondent
14 Washoe County shall Answer the Petition within 21 days and appear and show cause, at a
15 specified time and place, why Washoe County has not done so.
16 6. That this Honorable Court order the Clerk of the Court to issue an alternative writ
17 of mandamus directed to Respondent Washoe County, stating that Petitioners allege in their
18 Petition for Writ of Mandamus and Declaratory Relief that Washoe County is failing to enforce
19 zoning codes and proper use of the Property, and that Washoe County shall (i) require Safe
20 Embrace to apply for a Special Use permit so that Plaintiffs may receive notice and an
21 opportunity to be heard on the matter at a public hearing, and (ii) enforce the applicable laws and
22 codes which prevent the operation and maintenance of a Group Care Facility at the Property, or,
23 in the alternative, Respondent Washoe County shall Answer the Petition within 21 days and
24 appear and show cause, at a specified time and place, why Washoe County has not done so.
25 7. That this Honorable Court order the Clerk of the Court to issue an alternative writ
26 of mandamus directed to Respondent City of Sparks stating that Petitioners allege in their
27 Petition for Writ of Mandamus and Declaratory Relief that the City of Sparks improperly
28 approved permits which resulted in impermissible zoning and/or use changes to the Property, and
Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 20
Reno, Nevada 89501
1 that the City of Sparks shall rescind these approvals, or, in the alternative, Respondent City of
2 Sparks shall Answer the Petition within 21 days and appear and show cause, at a specified time
5 9. For reasonable attorneys’ fees and costs of the suit incurred herein, and
6 10. For such other relief as the Court may deem just and proper.
8 The undersigned affirms that the preceding document does not contain the social security
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ROBERTSON, JOHNSON,
12 MILLER & WILLIAMSON
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Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 21
Reno, Nevada 89501
1 Index of Exhibits
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Exhibit Description Pages
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1 Joint Tenancy Deed 4
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2 September 18, 2018 email from John Etchemendy 1
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3 October 9, 2019 letter from Sparks City Manager Neil Krutz 1
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4 Declaration of Ryan Wittich 2
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5 Declaration of Tami Wittich 2
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6 Declaration of Alferd Knepper 4
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7 Declaration of Katherine Knepper 4
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8 Declaration of Carlos Gonzalez 2
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9 Declaration of Samantha Gonzalez 2
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10 Declaration of Mario Frugoli 2
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11 Declaration of Marcia Frugoli 2
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12 Declaration of John Bird 2
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13 Declaration of Gina Bird 2
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14 Declaration of John Jeffrey 5
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15 Declaration of Grant Garrison 2
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16 Declaration of Warren Stokes 2
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17 Declaration of James Ferris 2
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18 Declaration of Robert F. Georgeton 2
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19 Declaration of Nancy Beutel 2
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20 Declaration of Marvice Beutel 2
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Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 22
Reno, Nevada 89501