FILED

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

7 IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

8 IN AND FOR THE COUNTY OF WASHOE

9 RYAN WITTICH, an individual; TAMI

WITTICH, an individual; ALFERD
10 KNEPPER, an individual; KATHERINE Case No.:
KNEPPER, an individual; CARLOS
11 GONZALEZ, an individual; SAMANTHA Dept. No.:
GONZALEZ, an individual; MARIO
12 FRUGOLI, an individual; MARCIA
FRUGOLI, an individual; JOHN BIRD, an
13 individual; GINA BIRD, an individual; JOHN
JEFFREY, an individual; GRANT
14 GARRISON, an individual; WARREN
STOKES, an individual; JAMES FERRIS, an
15 individual; ROBERT F. GEORGETON, an
individual; NANCY BEUTEL, an individual;
16 and MARVICE BEUTEL, an individual

17 Plaintiffs-Petitioners,

18 vs.

19 COUNTY OF WASHOE, a political

subdivision of the State of Nevada; CITY OF
20 SPARKS, a political subdivision of the State of
Nevada; SAFE EMBRACE, a Nevada
21 nonprofit corporation; and DOES I through X,
inclusive,
22
Defendants-Respondents.
23

24 PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM

ARBITRATION PURSUANT TO N.A.R. 3(A) – DECLARATORY RELIEF
25 REQUESTED)

26 COMES NOW, Plaintiffs-Petitioners RYAN WITTICH, TAMI WITTICH, ALFERD

27 KNEPPER, KATHERINE KNEPPER, CARLOS GONZALEZ, SAMANTHA GONZALEZ,

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

18 property and residence located at 2275 Ponderosa Dr., Sparks, Nevada.

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

24 property and residence located at 2107 Ponderosa Dr., Sparks, Nevada.

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

5 http://www.safeembrace.org/services/emergency-shelter/. Safe Embrace received title to the

6 Property on July 10, 2019. Upon information and belief, Safe Embrace previously did business

7 as Victorious in His Sight, which received title to the Property in 2003.

8 13. Defendant-Respondent, the County of Washoe (“Washoe County”), is a political

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.

12 14. Defendant-Respondent, the City of Sparks (“Sparks”), is a political subdivision of

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

15 use, and zoning through its various departments.

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.

20 JURISDICTION AND VENUE

21 16. This Court has subject matter jurisdiction over this action under Article 6, §6 of

22 the Nevada Constitution and NRS 14.065(1).

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

26 pursuant to NRS 30.030 and 30.040.

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

3 Homes in P.J. Kelly’s Ranch Subdivision.

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

12 of those lots for single-family residential purposes.

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

15 lots in P.J. Kelly’s Ranch Subdivision.

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

19 and incorporated by reference herein.

20 25. The Deed Restrictions are expressly stated to be perpetually binding upon any

21 purchaser of the property and to perpetually run with the land.

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

25 the Washoe County Recorder’s Office upon acquisition of the Property.

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

28 private single-family homes.

Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 4
Reno, Nevada 89501
 1 29. The first deed restriction provides that “[n]o part or portion of said real property

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

7 of beds from 9 to 32.

8 31. The fifth deed restriction provides that “[n]o multiple family residences shall at

9 any time be constructed or maintained thereon.” See Exhibit 1.

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

14 Embrace’s conversion of the Property into a multi-family residence.

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

18 Property would be a violation of the Deed Restrictions applicable to the Property.

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

2 Defendant Safe Embrace’s violation of the Deed Restrictions.

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

18 related to the Addition on the Property with the City of Sparks.

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.

22 41. Safe Embrace’s development application requested permission to begin

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

27 use of the property to multi-family.

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

3 within which the Property is located.

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.

12 See NRS 278.315(4)(c).

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,

19 without public hearing or comment, and without proper authority.

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

24 permit is not required.

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

2 the City of Sparks.

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

5 application to the City of Sparks planning and zoning for review.

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

11 comment, and without proper authority.

12 53. In September 2018, the Kneppers noticed construction occurring at the Property

13 and began online research into what was being built.

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

22 an approval of additional bedrooms, not additional occupants.

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

3 would need to apply for a Special Use Permit.

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

6 “Group Home” in accordance with WCDC § 110.304.15(c).

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.

14 Washoe County approved this request.

15 59. Based on Washoe County’s approval of Safe Embrace’s business license

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

21 deprived them of their legally-mandated opportunity to be heard on Defendant Safe Embrace’s

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

26 with the Kneppers on this issue.

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

7 application to increase its beds from 9 to 32 was in error.

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

11 Exhibit 3 and incorporated by reference herein.

12 C. Washoe County Impermissibly Allows Defendant Safe Embrace to Operate a “Group

13 Care Facility” in a Residential Zone.

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

20 comparable to the current residential zones described in WCDC at Table 110.106.30.1.

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

27 as a family. WCDC § 110.304.15(c)(emphasis added).

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

8 the definition of a Group Home and became a Group Care Facility.

9 72. A “Group Care Facility” is a “Civic Use Type,” not a “Residential Use Type.”

10 WCDC §§ 110.304.15(c), 110.304.20(h).

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

13 the Board of Adjustment. WCDC, Table 110.302.05.1 & 2; WCDC § 110.302.15(d).

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

20 opportunity to be heard at a public hearing.

21 D. Plaintiffs Have Been Denied Relief by Sparks and Washoe County.

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

28 authority to take any action with respect to the Property.

Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 11
Reno, Nevada 89501
 1 78. Thereafter, the Kneppers filed a letter of complaint on Washoe County’s website

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

4 were told the matter was closed.

5 79. On February 5, 2020, the Kneppers attended a Washoe County Neighborhood

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

9 Safe Embrace’s current business license be rescinded.

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

12 improper zoning and use of the Property.

13 81. On March 10, 2020, the Kneppers sent an email to be read at the County

14 Commission Meeting, which was held via Zoom.

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

25 since that time.

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

28 voluntarily cease operating the Group Care Facility at the Property.

Robertson, Johnson,
Miller & Williamson
50 West Liberty Street, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT (EXEMPT FROM ARBITRATION)
Suite 600 PAGE 12
Reno, Nevada 89501
 1 86. Defendant Safe Embrace is unlawfully operating a Group Care Facility and is not

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.

5 88. Accordingly, Petitioners have no plain, speedy, or adequate remedy in the

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

9 automatically adopted Sparks’ approvals and refuses to review same.

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.

14 FIRST CLAIM FOR RELIEF

15 (Injunction Against Safe Embrace – Deed Restriction)

16 90. Plaintiffs incorporate by this reference, as though fully set forth herein, each and

17 every allegation contained in the above paragraphs of this Complaint.

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

20 Defendant Safe Embrace’s purchase of the parcel at issue.

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

24 or portion of the Property for business or commercial purposes.

25 94. Defendant Safe Embrace has violated the express Deed Restrictions by operating

26 and maintaining a multiple family residence on the Property.

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

3 Defendant Safe Embrace is permitted to continue its impermissible use.

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

9 Joint Tenancy Deed.

10 SECOND CLAIM FOR RELIEF

11 (Declaratory Relief Against Safe Embrace– Deed Restrictions)

12 99. Plaintiffs incorporate by this reference, as though fully set forth herein, each and

13 every allegation contained in the above paragraphs of this Complaint.

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

16 violates the Deed Restrictions.

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

21 provisions of the Deed Restrictions.

22 102. Such declaration is necessary and appropriate at this time in order for Plaintiffs to

23 ascertain their rights and duties with respect to Plaintiffs’ claims.

24 THIRD CLAIM FOR RELIEF

25 (Nuisance Against Safe Embrace)

26 103. Plaintiffs incorporate by this reference, as though fully set forth herein, each and

27 every allegation contained in the above paragraphs of this Complaint.

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

2 unreasonable, unwarranted, and/or unlawful use of the Property.

3 105. Defendant Safe Embrace’s actions have caused substantial and unreasonable

4 interference with Plaintiffs’ use and enjoyment of their own properties.

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

7 landscaping and a landscaping buffer as required for a Group Care Facility.

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

11 traffic related to the Group Care Facility.

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

15 Property have been turned into parking lots.

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

24 proximately caused damages to Plaintiffs in excess of $15,000.

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

27 costs in an amount that cannot presently be determined.

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

2 (Breach of Contract Against Safe Embrace)

3 113. Plaintiffs incorporate by this reference, as though fully set forth herein, each and

4 every allegation contained in the above paragraphs of this Complaint.

5 114. Upon information and belief, all the properties in P.J. Kelly’s Subdivision are

6 bound by the same or similar Deed Restrictions.

7 115. Upon purchase of the property, Defendant Safe Embrace had a duty to comply

8 with the Deed Restrictions.

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.

11 117. Defendant Safe Embrace either intentionally, recklessly, carelessly, or negligently

12 violated the Deed Restrictions by designing, constructing, and/or maintaining a multifamily

13 residence on the Property.

14 118. Defendant Safe Embrace either intentionally, recklessly, carelessly, or negligently

15 violated the Deed Restrictions by using the Property for business or commercial purposes.

16 119. Defendant Safe Embrace either intentionally, recklessly, carelessly, or negligently

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

19 caused damages to Plaintiffs.

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

22 costs in an amount that cannot presently be determined.

23 FIFTH CLAIM FOR RELIEF

24 (Violation of Due Process and Declaratory Relief Against City of Sparks)

25 122. Plaintiffs incorporate by this reference, as though fully set forth herein, each and

26 every allegation contained in the above paragraphs of this Complaint.

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.

7 126. A fundamental requirement of due process is the opportunity to be heard at a

8 meaningful time in a meaningful manner.

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,

18 or ordinances for the benefit of Safe Embrace.

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

22 United States Constitution and the Nevada Constitution.

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

26 the United States Constitution and the Nevada Constitution.

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

6 of Safe Embrace’s applications without notice to Plaintiffs.

7 SIXTH CLAIM FOR RELIEF

8 (Alternative Writ of Mandamus Against Washoe County)

9 134. Plaintiffs incorporate by this reference, as though fully set forth herein, each and

10 every allegation contained in the above paragraphs of this Complaint.

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

14 decisions previously made by Sparks.

15 137. Plaintiffs have no plain, speedy, and adequate remedy in the ordinary course of

16 law.

17 138. Accordingly, Plaintiffs request an alternative writ of mandamus issue compelling

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.

21 139. Additionally, Plaintiffs request an alternative writ of mandamus issue compelling

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

27 110.302.05.2; WCDC, § 110.304.15(c), Residential Use Types; WCDC §§ 110.304.15(c).

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

2 (Alternative Writ of Mandamus Against City of Sparks)

3 140. Plaintiffs incorporate by this reference, as though fully set forth herein, each and

4 every allegation contained in the above paragraphs of this Complaint.

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

10 enjoyment of their property.

11 143. The City of Sparks denied the Kneppers’ multiple requests to correct the unlawful

12 use of the Property as a Group Care Facility.

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

16 ordinary course of law.

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

19 office, trust or station . . . .” NRS 34.160.

20 147. Attached as Exhibits 4 - 20 are Declarations by the Petitioners in support of the

21 Petition for Writ of Mandamus in accordance with NRS 34.160.

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

24 concerning the Property.

25 PRAYER FOR RELIEF

26 Wherefore, Plaintiffs pray for judgment against the Defendants and each of them, as

27 follows:

28
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

2 Property is in violation of the Deed Restrictions that apply to the Property;

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

6 Property for business or commercial purposes;

7 4. For a permanent injunction enjoining Defendant Safe Embrace from using the

8 Property to maintain or operate multiple-family residences;

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

3 and place, why City of Sparks has not done so.

4 8. For damages to Petitioners in excess of $15,000;

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.

7 Affirmation pursuant to NRS 239B.030

8 The undersigned affirms that the preceding document does not contain the social security

9 number of any person.

10 DATED this 21st day of October, 2020.

11
ROBERTSON, JOHNSON,
12 MILLER & WILLIAMSON

13 By: /s/ Jarrad C. Miller

Jarrad C. Miller, Esq.
14 Samantha J. Reviglio, Esq.
Attorneys for Plaintiffs-Petitioners
15

16

17

18

19

20

21

22

23

24

25

26

27

28
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
2
Exhibit Description Pages
3
1 Joint Tenancy Deed 4
4
2 September 18, 2018 email from John Etchemendy 1
5
3 October 9, 2019 letter from Sparks City Manager Neil Krutz 1
6
4 Declaration of Ryan Wittich 2
7
5 Declaration of Tami Wittich 2
8
6 Declaration of Alferd Knepper 4
9
7 Declaration of Katherine Knepper 4
10
8 Declaration of Carlos Gonzalez 2
11
9 Declaration of Samantha Gonzalez 2
12
10 Declaration of Mario Frugoli 2
13
11 Declaration of Marcia Frugoli 2
14
12 Declaration of John Bird 2
15
13 Declaration of Gina Bird 2
16
14 Declaration of John Jeffrey 5
17
15 Declaration of Grant Garrison 2
18
16 Declaration of Warren Stokes 2
19
17 Declaration of James Ferris 2
20
18 Declaration of Robert F. Georgeton 2
21
19 Declaration of Nancy Beutel 2
22
20 Declaration of Marvice Beutel 2
23

24

25

26

27

28
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