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Platunov v. Nye County

United States District Court, D. Nevada

September 29, 2019

VASILI PLATUNOV, Plaintiff,
v.
NYE COUNTY, et al., Defendants.

          ORDER

          Gloria M. Navarro, District Judge

         Pending before the Court is Defendants Nye County's and Angela Bello's (collectively, “Defendants”) Motion for Younger Abstention, (ECF No. 14). Plaintiff Vasili Platunov (“Plaintiff”) filed a Response, (ECF No. 17), and Defendants filed a Reply, (ECF No. 20).

         I. BACKGROUND

         This is a 42 U.S.C. § 1983 action for damages and declaratory relief, alleging an unlawful taking of Plaintiff's property rights under a grandfather clause without due process. (See Compl., ECF No. 1). Defendant Nye County is a political subdivision of the State of Nevada; Defendant Bello is a Nye County District Attorney. (Compl. at 2). Plaintiff is a professional dog breeder doing business as Est-Alfa K-9 Security Services, LLC. (Id.).

         On or about February 20, 2007, Plaintiff purchased certain real property located at 2790 East Camellia Street, Pahrump, Nevada 89048 (the “Property”), for purposes of commercial kennel use. (Compl. at 2-3); (see ECF No. 1-7). Plaintiff alleges that his commercial kennel use was in compliance with use regulations in effect at the time his use was established. (Compl. at 3-4).

         On October 24, 2007, the Nye County Board of Commissioners adopted Bill No. 2007-13, Nye County Ordinance No. 346 (effective Nov. 19, 2007) (“Ordinance 346”), which amended zoning regulations applicable to the Property by adding regulations and amendments regarding animal related uses and definitions. Nye County Code (“NCC”) 17.04.220 allows commercial kennel use on real property located in Plaintiff's zoning district with the approval of a conditional use permit (“CUP”). NCC 17.04.100 provides that “[c]ommercial kennels existing prior to the adoption hereof, shall not be required to obtain a conditional use permit, ” under specified conditions (“Grandfather Clause”). Absent otherwise, only three (3) dogs are permitted per property. See NCC 17.04.100 (defining Kennel, Breeder's); (ECF Nos. 1, 14).

         In 2009, Plaintiff submitted a CUP application (CU-10-0013) for a commercial kennel use with up to 30 dogs to be maintained on the Property, which was approved in 2010. (Compl. at 4); (see ECF No. 14-1). In 2015, Plaintiff requested modification of CU-10-0013 to allow a commercial kennel use with up to 150 dogs, which was denied. (See Compl. at 4); (ECF No. 14-3). Plaintiff appealed the modification denial, but his appeal was likewise denied in 2017. (Compl. at 4-5). On April 30, 2018, the Nye County Planning Department, Division of Code Enforcement, issued an Enforcement Order to Plaintiff notifying Plaintiff that his appeal rights have been exhausted and ordering Plaintiff to reduce the number of dogs on the Property in compliance with the CUP (“Enforcement Order”). (Compl. at 5).

         Plaintiff alleges that his existing use of the Property for raising dogs is protected by the Grandfather Clause and that the new limitations placed on property owners are inapplicable to prior-established use. (Compl. at 3). Plaintiff further alleges that notwithstanding this grandfathered protection, agents of the Nye County Planning Commission misled him to believe that a CUP approving Plaintiff's commercial kennel use on the Property was necessary to be in compliance. (Compl. at 4). Plaintiff thus alleges that by granting CU-10-0013, “the [Regional Planning Commission] arbitrarily, and without authority, put conditions on [Plaintiff's] grandfathered CUP” and that Ordinance 346 violated his procedural due process rights. (Compl. at 4, 7).

         On May 18, 2018, Plaintiff filed the underlying Complaint against Defendants[1] asserting two claims for relief: (1) damages pursuant to 42 U.S.C. §§ 1983, 1988; and (2) declaratory judgment pursuant to 42 U.S.C. §§ 1983, 1988, 28 U.S.C. § 2201(a), and Fed.R.Civ.P. 57. (ECF No. 1). The Complaint seeks damages and a declaration that Ordinance 346 “is void for failure to observe notice and hearing requirements under State and Federal Law” or, alternatively, that Defendants “shall recognize Plaintiff's grandfather clause rights and shall cease and desist further attempts to enforce compliance with Nye County Ordinance No. 346.”[2](Compl. at 7). On September 19, 2018, Defendants filed their Answer. (Answer, ECF No. 12).

         On September 25, 2018, Nye County filed suit against Plaintiff in Nevada state court to enforce the Enforcement Order (“Enforcement Action”)[3]-specifically, seeking an injunction enjoining and restraining Plaintiff from a commercial kennel use on the Property and removal of the same. (See ECF No. 14-2); (Mot. to Dismiss (“MTD”) at 7, ECF No. 14).

         In the instant Motion, Defendants move for dismissal or stay of this action pending the resolution of the Enforcement Action pursuant to Younger abstention. (MTD at 1, ECF No. 14). In response, Plaintiff urges this Court to retain jurisdiction of this action pursuant to the “first-to-file” rule. (Resp. at 5, ECF No. 17).

         II. DISCUSSION

         The Court will first address Plaintiff's First-to-File arguments followed by the issue of Younger abstention.

         A. ...


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