MINUTES OF THE ASSEMBLY COMMITTEE ON GOVERNMENT AFFAIRS Sixty-eighth Session March 20, 1995 The Committee on Government Affairs was called to order at 8:00 a.m., on Monday, March 20, 1995, Chairman Lambert presiding in Room 330 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Douglas A. Bache, Chairman Mrs. Joan A. Lambert, Chairman Mrs. Deanna Braunlin, Vice Chairman Mr. Max Bennett Mrs. Marcia de Braga Mr. Pete Ernaut Mrs. Vivian L. Freeman Mr. William Z. (Bill) Harrington Ms. Saundra (Sandi) Krenzer Mr. Dennis Nolan Mrs. Gene Wines Segerblom Mrs. Patricia A. Tripple STAFF MEMBERS PRESENT: Denice Miller, Senior Research Analyst OTHERS PRESENT: Kendall Mattina, Sparks Planning Commission; Brett Lane, Clark County; Larry Osborne, Carson City Chamber of Commerce; Michael Cyphers, Clark County; Peter Krueger, Nevada Petroleum Marketers Association; Richard Holmes, Clark County; Jack Holmes, Washoe County; Pat Coward, Nevada Association of Realtors; Rob Joiner, American Planning Association; Stephanie Tyler, City of Sparks; Charlie Joerg, Eureka County; Barbara McKenzie, City of Reno. ASSEMBLY BILL 266 - Authorizes counties to recover money expended to remove or secure hazardous materials. (BDR 20-432) Michael Cyphers, Chemical Engineer for the Clark County Fire Department, who sponsored the bill, spoke first in favor of A.B. 266. He pointed out the bill was originated to provide a means to recover costs incurred during the clean-up of hazardous materials spills. The general fund of Clark County sets aside $400,000 each year for the costs associated with cleaning up spills left on private property by unknown individuals. This bill will install a mechanism to allow fire departments to go after property owners who deliberately and willfully allow things to be dumped on their property resulting in a public safety hazard or a hazardous materials environmental issue. Assemblyman Ernaut asked who determined if the spill was done knowingly or willingly. Mr. Cyphers indicated the Arson Investigation Division conducted inquiries into those matters. Mr. Ernaut questioned who determined the market value of the clean-up. Mr. Cyphers stated in Clark County clean-up services are contracted with Environmental Technologies, a division of Silver State Industries, and this is done by bid. Mr. Ernaut surmised if the owner had a dispute as to the willfulness of the incident, he would have access to the courts and due process. Mr. Cyphers affirmed that would be the case. This bill would only allow for the county commission to adopt rules and regulations to place a lien on the owner's property. A method of proper notification of such a lien would still need to be addressed. Mr. Ernaut inquired if this was currently done in the case of arson. Mr. Cyphers said he did not deal with arson and did not know. He stressed the key issue was not to go after innocent parties, but to go after those who knowingly allow things to take place on their property creating a public safety hazard. Assemblyman Freeman had a letter from the District Attorney's Office asking for a more specific definition of hazardous materials in the bill. Mr. Cyphers agreed a broader definition such as that present in the uniform fire code would be appropriate as the code is used by both the Washoe and Clark County fire departments. Mrs. Freeman was curious why knowledgeable wrongdoers would not be pursued for payment of clean-up costs when it was their fault. Mr. Cyphers indicated it was not a high priority item on their District Attorney's agenda. This bill would allow more freedom to pursue individuals in that area. Assemblyman Bache pointed out lines nine and ten and questioned if hazardous materials would still be removed even if the associated costs were not recovered. He suggested perhaps the language was poor and needed adjustment. Mr. Cyphers did not interpret the passage that way. He stated it just meant the perpetrator could be pursued through the legal system. Assemblyman Nolan understood the process of responding to situations usually arose from an emergency call to the fire department. Mr. Cyphers agreed and said the calls are often 911 calls or complaints to the fire prevention bureau. Assemblyman Krenzer queried whether section 459.770 of the Nevada Revised Statutes already covered the ability to do this without the additional bill. Mr. Cyphers responded no, it did not cover all measures such as the ability to put a lien on property. Mr. Ernaut wanted to clarify the bill would simply allow the county to adopt the regulations already in place for recovering clean-up fees. Mr. Cyphers confirmed that to be so. Assemblyman Harrington asked when a hazardous clean-up spill was done, did the Environmental Protection Agency (EPA) get involved. Mr. Cyphers stated the EPA only got involved in large cases, so far those only exceeding one million dollars. They do have to notify the EPA of the release of toxic substances, called a reportable quantity. Most small spills do not meet those federal reporting requirements. Mr. Harrington wanted to know what was done in the case of a small spill. Mr. Cyphers replied the area and drum itself had to be cleaned up and the excess taken away and properly disposed of. Chairman Lambert read NRS 459.770 and questioned changing the ordinance under chapter 459 to have the ability to place liens. Mr. Cyphers responded perhaps, but he lacked adequate knowledge of which portion of the NRS would have to be changed to achieve that ability. Mrs. Lambert hoped to find out from a legal expert. Larry Osborne, Carson City Chamber of Commerce, opposed the bill as unnecessary and redundant. He related a recent incident of going through the process of attempting to pass an ordinance of the same sort in Carson City (Exhibit C). At the local level, approval of this ordinance would enable the city to recover funds expended in the response, mitigation and clean-up of hazardous materials incidents. The authority for this is granted to local jurisdictions through chapter 459 of the NRS. Local governments feel they already have the jurisdiction to pass or propose ordinances to deal with this. The Chamber of Commerce has opposed the ordinance at the local level also and it has been tabled until the outcome is seen at the state level. Some of the problems with the local ordinance were vague language regarding substances classified as hazardous and a lack of oversight of fees or expenses that could be charged against the business or property of the violator. He mentioned they had also asked for a list of hazardous incidents for the local fire department. One of the problems encountered was the time spent attempting to identify unknown substances. Another was trying to determine the costs and charges for responding to a hazardous materials incident. Taxes are already being paid for the services of local fire departments. They are working with the local fire department to come up with some type of definition and criteria whereby fire departments can recover extraordinary costs over and above those incurred for a normal type of incident. They do feel A.B. 266 is unnecessary. Mr. Ernaut wondered how many of the Carson City incidents the District Attorney had gone after to recover associated costs. Mr. Osborne indicated none at this time, however Carson City does not have an ordinance in place to allow the pursuit of these people. It really is not a current problem but the issue needs to be addressed to prepare for any future incidents. Mr. Ernaut pointed out there was a very large concentration of manufacturers in Carson City using hazardous materials. Mr. Osborne agreed. He added when a manufacturer uses hazardous materials, usually there are conditions granted to their building permit. One of the conditions is they must map out and provide to the fire department a list of all the materials being used in their process as well as the storage and location of those materials. The fire department would then double check on this prior to going into operation. They keep a notebook with all of these locations and information in it so they will be aware of what is at the site before going in. Mr. Ernaut queried whether any other counties have passed this ordinance. Mr. Osborne did not bring that information with him, but mentioned about four had some type of recovery system. Assemblyman Nolan questioned if most large manufacturers carried insurance in case of an accidental spill. Mr. Osborne was sure they must carry it but was not sure to what extent. Mr. Nolan reaffirmed this bill was intended to address the small landowners, not big businesses. Mr. Osborne believed there were civil action avenues available to pursue wanton disregard of standing ordinances imposed by cities and counties. Mr. Peter Krueger, representing the Nevada Petroleum Marketers Association, spoke in opposition to A.B. 266. He mentioned a similar bill last session in the city of Sparks and some of its provisions. He said Clark County was merely interested in the occasional abandoned drum or contaminate on a particular parcel of property as opposed to a much broader bill as it is currently being presented. Although the association would not object to more site-specific legislation, the way the bill is written at this time would allow for a very broad interpretation that would result in the excess expenditure of time, money and man hours. Assemblyman Freeman remembered the bill from last session. She wanted to discuss that with him after the meeting. Mr. Ernaut referred to the contingency fund of $400,000 that was previously mentioned and asked how it was created. Mr. Krueger stated that was a Clark County general fund appropriation and was not sure what other counties had in place. Mr. Ernaut thought the contingency fund was for the entire state and was imposed through each county commission. Mr. Krueger indicated Mr. Ernaut might be thinking of the highly hazardous materials which are dealt with in a different manner. Mrs. Lambert closed the hearing on A.B. 266. ASSEMBLY BILL 267 - Revises various provisions relating to land use planning. (BDR 22-204) Mr. Richard Holmes, Planning Director for Clark County, spoke on section one of the bill. Mr. Holmes indicated one change desired in the bill; lines 18-20. The Planning Department would like to allow the governing body to remove the planning commission for any reason at any time instead of for the reason currently listed. He stated the reason for this is the commissioners feel they should be more responsive to the public and would like to change members more often than every four years. The change of pace in voter attitudes in Clark County has been the driving force behind this type of bill. Flexibility is necessary to make changes in the planning commission when there is a shift in the attitude of the voters which in turn affects the responsibilities of the planning commission. Mr. Bache said it looks like the planning commissioners could be changed too quickly and easily and there needs to be some just cause for doing so. Whether the current language is too narrow or not , there still needs to be some justification for the action. Assemblyman Harrington agreed with Mr. Bache. He was disturbed the public hearing portion was being eliminated also as it suggested something is being hidden. For developers who invest money in the planning of a city, there has to be some stability in the scheme. If the status of the commissioners is in doubt from week to week, it would cause an increase in the cost of all developments. Assemblyman Segerblom reiterated the beliefs of Mr. Bache and Mr. Harrington. She also added the four year term was not objectionable to her. Mrs. Krenzer agreed with what had been said. She questioned the incentive of planning commissioners if they were at risk of being replaced or eliminated at any time. Mr. Holmes remarked the original planning statutes were put in place in the 1940's or 1950's before the open meeting law. The question of public scrutiny or accountability would be addressed by having a public meeting. He did not foresee a wholesale elimination of planning commissioners or a change on a week to week basis. The county commissioners' intent was to allow flexibility. Mrs. Krenzer suggested the possibility of changing the term of office to two years instead of four or altering the language to reflect some standards to define parameters around which the incumbents could be judged as fit for office. She stated the need for some criteria or stability to be established. Mr. Holmes thought the two year term would be an improvement and allow for more rapid change. Mr. Harrington pointed out the need for freedom and public control of the government but said there are times when stability is definitely called for. For example, if the Federal Reserve Board were to change too often, the price of money would fluctuate causing major problems and an unstable economy. He felt it was the same with planning. For people to invest money and develop properties, they need to know who they are dealing with, know they will be available and know that the policy will not shift from moment to moment. Over the long run, the commission is responsible to the people. He did not feel people would be as willing to invest if the situation were not as stable. Mr. Holmes replied it was a balancing act. He agreed stability was needed but flexibility was also necessary to be able to place commissioners who would reflect the more recent election choices of the voters. Mrs. Segerblom wondered if there was a requirement for attendance and could that be grounds for dismissal. Mr. Holmes replied no, there have been instances of major surgery and something like that would not be considered negligent. Mrs. Krenzer mentioned she had over 150 angry residents up in arms over the planning commission incident. Brett Lane, County Surveyor for Clark County, was the author of sections two through four of the bill. He provided some background on the bill (Exhibit D). In the 1993 legislative session, language contained in five bills was condensed and put into A.B. 177 which was then passed into law. The combination of language resulted in an omission of certain verbiage lending consistency to the statute concerning the preparation of certificates of ownership and final approvals of land division documents. This bill will clean up those inadvertent deletions and give clarity to the statute. Mrs. Lambert asked about the clean-up and omission and questioned if the only thing left out was the signature of the owner of the land to sign on the map for the parcels. He affirmed the statute had read prior to 1993 that it required the owner of land being divided by a parcel map to sign it. The same thing is true for division of land into large parcels. The requirement today requires the owners of security interests to sign it but is non-specific relative to the owner actually signing it. In short, the adverse impact could be that in the future, someone may come along and declare an impropriety on the legitimacy of a document that did not bear the owner's name and signature, implying he consented to the preparation of that document. Mrs. Lambert pointed out page four, line one which said the signature of each owner of record of the land to be divided may be required for larger parcels; that part was already covered. Mr. Lane replied that may well be. Mrs. Lambert also pointed out that requirement had been left out on page two regarding the parcel maps. Mrs. Lambert indicated the requirement for a certificate to be filed by a licensed professional surveyor or engineer and queried whether that requirement would pertain to the county or city surveyor as well. Mr. Lane said yes, it was to bring consistency to the statute which has that same requirement already in place for all other types of subdivisions. She said this would call for a great deal of work. Mr. Lane remarked this was a standardizing proposal. Mrs. Lambert asked if all counties would be required to do this if they were not doing so at the present time. Mr. Lane answered the current requirement was for all parcel maps to be reviewed. The overall concept is approved by the Planning Director. The county has to ensure or provide some degree of certainty of location and other issues surrounding land surveying or map making and general development. The only thing some of the smaller counties have to rely on is the language in the statute. Mr. Bache questioned, in terms of the dual certificates, if the interim study was one of the recommendations that was omitted. Mr. Lane stated what was omitted was the requirement of the voter's signature for divisions of large parcels. The second certificate can be listed as a concept the interim committee was looking at under standardization and reviews. Jack Holmes, Washoe County surveyor, said the county had a great deal of concern trying to figure out why section one was put in this bill. They want this portion of the bill to be eliminated and the remainder approved (Exhibit E). This portion relates only to Clark County and the affairs of the planning commission. Mr. Holmes stated he currently checks parcel maps for technical correctness although he did not have a certificate saying he had done so. Throughout the rest of the state, this may not have been done as people are complacent when it comes to having a map prepared by a professional, qualified county surveyor. Mistakes are still made and should be checked by a hired professional. Mrs. Lambert asked how long it would take to check a regular parcel map. Mr. Holmes stated about half an hour to an hour. A parcel map has four parcels or less identified on it with the inclusion of a title report. Land maps can be more vast and require more time. Mrs. Lambert wondered if the counties had the ability to charge the developer for the cost of the certificate. Mr. Holmes responded yes, they do. Washoe County would have a minimal charge of $30. The assurance of this bill is a technical check that would be consistent throughout the state. Mrs. Lambert reiterated the fee is currently not being assessed for the signature but would be if the bill were passed. Mr. Holmes affirmed this to be true. Kendall Mattina of the Sparks Planning Commission spoke in opposition to the bill. Lines 18-20, dealing with the removal of planning commissioners without due process, were in dispute. She stated there were currently rules in place for removing planning commissioners. The mission of planning commissioners was to take the objective information given and apply that to good land use planning. It may not be the politically correct planning some would like. Other factors need to be addressed such as hydrology, soil reports, growth patterns, demographics, zoning and other ordinances. These are considered along with the proposed project and an objective land use plan is then forwarded to the official in charge. It is their duty to take all the information at hand and make a decision. If planning commissioners can be removed at any time, the ability to give appropriate recommendations for land use will be impinged. It could lend itself to empire building by elected officials and opportunists. Planning commissioners today are volunteers coming from the community who want what is best for all. They are trained and invest a lot of time in study and training for their duties. A shortened term in office is not desired by the Sparks Planning Commission either. There is already continuous turnover on the planning commission. It takes time for members to be apprised of all the rules, regulations, zoning, traffic reports, and other types of information. Two years is really not enough time for planning commissioners to absorb all the necessary information. She supplied a letter from the Sparks Chamber of Commerce Legislative Committee strongly opposing A.B. 267 (Exhibit F). Ms. Mattina reiterated they were only opposed to the first portion of the bill, not the bill as a whole. Scott Nebesky, Associate Planner with the Truckee Meadows Regional Planning Agency, testified in opposition to A.B. 267. He believed the language in section one allowing a public citizen to be removed from the planning commission without due process would harm the planning process for two primary reasons: 1. It would eliminate the independence of a planning commission as an advisory board. Currently, a planning commissioner does not have to consider the political ramifications of his or her decisions. Their decisions are based on prudent planning practice and oftentimes a planning commission will recommend a particular action that is completely contrary to an elected body. He felt the objective perspective was an essential contribution to the planning process. If adopted, this bill would eliminate the need for a planning commission because these appointments would be beholding to the political process. This is an advisory board, not a politically elected body. As the caretaker of long-range master plans and regional plans, the planning commission should not fluctuate with the mood of politics. 2. As proposed, this bill would eliminate the due process for an individual. He wondered how many qualified and concerned citizens would be willing to serve on a commission that makes tough decisions and risk being accused of unprofessionalism, or any arbitrary charge without a public hearing. In addition, there are several other planning arenas which could be affected; chapters 287.100, 278.026-029, and 278.794 of the Nevada Revised Statutes. Pat Coward, Nevada Association of Realtors, spoke in opposition to a portion of A.B. 267, page one, lines 18-20. The association felt although public officials may have good intentions, to remove the public hearing process would be harmful. The rationale for removing a planning commissioner needs to be reformed and updated. He pointed out from a public policy point of view, there needs to be a definition or reason for removing a planning commissioner from office. Mrs. Krenzer asked Mr. Coward if he would have any objection to leaving subsection five in the bill changing the term of office to two years instead of four. Mr. Coward believed there was a tremendous learning curve associated with the activities of the planning commissioner. It is intensive and takes a lot of work and removing two years of the term of office could be a problem. Rob Joiner, representing the Nevada chapter of the American Planning Association (APA), testified in opposition to the bill. He stressed the APA also objected to removing the due process in the bill as it would damage the planning commission process. Planning commissions are mainly a recommending body to a governing board and by removing their ability to decide their actions in a just and unbiased manner, there is no due process. Recruiting planning commissioners is difficult to begin with and a lack of stability in the process would hamper the planning commission even further. Reducing the term of office would also damage the planning process as it takes time to learn all the various aspects involved in the job. The appearance of political appointment rather than the qualifications and desires of the interested parties would damage the objectivity of the person serving on that board. They had no objection to section two of the bill. Mr. Bache asked for Mr. Joiner's expertise in explaining section two of the bill. Mr. Joiner mentioned they had no objection to that section, and said any time more acceptance by a property owner for an application is added that is seen as a positive. As for lines 24 and 25, again this is a positive thing to have the acceptance of the map and consent of the owner. The additional certificate would just reinforce that. Charlie Joerg, representing Eureka County, mentioned they did not even have land surveyors on the official county staff. He was concerned with the requirement forcing them to retain or contract for one and bear the additional cost. He wanted to make the committee aware that this may be the case in many of the smaller counties in the state. Perhaps the ability to collect the fee could be addressed in some other manner to avoid burdening the entire state. Barbara McKenzie, city of Reno, was opposed to parts of the bill. She thought it was a good idea for the owners to sign the parcel maps so they are aware of all that is going on with their land. Fees may need to be raised which would have a negative impact. Another concern would be the monuments located on these parcel maps. The city engineer must verify that a registered land surveyor or other engineer has actually set the monuments. Thus far, there have been no problems in this area. Stephanie Tyler, city of Sparks, spoke on A.B. 267. There was no immediate concern for section one as the population of Sparks does not meet the criteria for that section. They were concerned, however, with the elimination of planning commissioners without due process. The City of Sparks felt the current language was sufficient and provided valid reasons for removal of planning commissioners. She mentioned the remainder of the bill was not problematical. Mrs. Lambert closed the hearing on A.B. 267. The meeting was adjourned at 10:40 a.m. RESPECTFULLY SUBMITTED: Denise Sins, Committee Secretary APPROVED BY: Assemblyman Douglas A. Bache, Chairman Assemblyman Joan A. Lambert, Chairman Assembly Committee on Government Affairs March 20, 1995 Page