United States District Court, D. Nevada
M. Navarro, District Judge
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).
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.).
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).
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).
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).
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,
18, 2018, Plaintiff filed the underlying Complaint against
Defendants 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.”(Compl. at 7). On September
19, 2018, Defendants filed their Answer. (Answer, ECF No.
September 25, 2018, Nye County filed suit against Plaintiff
in Nevada state court to enforce the Enforcement Order
(“Enforcement Action”)-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).
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).
Court will first address Plaintiff's First-to-File
arguments followed by the issue of Younger