Petition for Writ of Certiorari — Bator v. Washoe County Building Department

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Supreme Gor,

RBILE OD

IN THE

AN 25 Wl

SUPREME COURT OF THE UNITED S$&tASHS. span, JR.

GAERK

OCTOBER TERM, 1990

Case No.

ANTHONY J. BATOR

Appellant-Petitioner,

vs.

WASHOE COUNTY BUILDING DEPARTMENT

AND WASHOE COUNTY,

Appellee-Respcondent

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF

NEVADA AND DEPARTMENT 6 OF THE

SECOND JUDICIAL DISTRICT COURT OF THE

STATE OF NEVADA IN AND FOR THE COUNTY

OF WASHOE

APPENDIX

Anthony J. Bator

1605 Ambassador Dr.

Reno, Nevada 89503

(702) 747-3964

QUESTION PRESENTED

Has the Petitioner's Fifth and Four-

teenth amendment rights to due process of

law, including the right to be heard, been

denied by both by Department 6 of the 2nd

judicial district of the state of Nevada

in and for the County of Washoe and then

again in denial of his appeal, without

briefing, because of his status as a pro

se litigant, before the Nevada Supreme

Court resulting in the Petitioner being

denied the use of his property and

occupation of choice.

INDEX

TS . aae 1

Ref. to Court records and reports..... 2

PU REMEAMPEROMRs Sc cna cecoesconesesesoeseces 3

BCACGMONE GCE CNS CASS. cc ccccsccccesecs 4

eg EE eG UC ae.” rr 7

Reason for allowance of the Writ...... 8

Affidavits in support of the Supreme..9

Court of the State of Nevada

refusal to permit pro se

litigants an appeai from

any Court in the State of

Nevada

te eee ken oboe be be 8 O68 608 ees Al

CITATIONS

CONSTITUTION OF THE UNITED STATES

WATER PCLLUTION CONTROL ACT OF 1972

P.L.92-500

CLEAN WATER ACT OF 1977

P.L.92-217

CHAPTER 445 OF THE NEVADA REVISED STATUES

ENACTED TO BE INCOMPLIANCE WITH

FEDERAL P.L. 92-500 AND

P.L.92-217

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

Case No.

ANTHONY J. BATOR

Appellant-Petitioner,

vs.

WASHOE COUNTY BUILDING DEPARTMENT

AND WASHOE COUNTY,

Appellee-Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF

NEVADA AND DEPARTMENT 6 OF THE SECOND

JUDICIAL DISTRICT OF THE STATE OF

NEVADA IN AND FOR THE COUNTY OF WASHOE

QUESTION PRESENTED

Has the Petitioner's Fifth and Four-

teenth amendment rights to due process of

law, including the right to be heard, been

denied by both by Department 6 of the 2nd

— 7. tie,

oa Sw i

ee i

judicial district of the state of Nevada

in and for the County of Washoe and then

again in denial of his appeal, without

briefing, because of his status as a pro

se litigant, before the Nevada Supreme

Court resulting in the Petitioner being

denied the use of his property and

occupation of choice.

REFERENCES TO COURT RECORDS AND REPORTS

The Order of Department 6 of the 2nd

Judicial District of the State of Nevada

and the Order of the Supreme Court of the

State of Nevada are included in the

Appendix. As well as other important

documents to petitioner's complaint. A

Court Order Directing the Washoe County

Building Department to issue Petitioner

his building permits was denied without

merit and in violation of Rule 52 of the

Nevada Rules of Civil Procedure which

states:

In all actions tried upon the facts

without a jury or with an advisory

jury, the court shall find the facts

specially and state separately its

conclusions of law thereon and direct

the entry of the appropriate judgement

Department 6 of the District Court fails

miserably in its responsibility. The

Supreme Court arbitrarily dismissed the

appeal from the district cpyurt without

briefing for no cause other than petition-

er is a pro se litigant.

(SEE 5 (FIVE) ATTACHED AFFIDAVITS SCRIBED

AND SWORN BY OTHER PEOPLE WHO HAVE

ATTEMPTED TO PROCEED AS PRO SE LITIGANTS

BEFORE THE SUPREME COURT OF THE STATE OF

NEVADA (MORE ARE AVAILABLE).

JURISDICTION

The order dismissing the appeal to

the Supreme Court of the State of Nevada

was filed by the Supreme Court on October

29, 1990. A timely Motion to Reconsider

its order was filed on November 6,1990 and

denied on December 18, 1990. A motion to

stay the Remitter was filed and ignored on

December 24, 1990. On January 2, 1990

the Supreme Court of Nevada issued an

order recalling the remitter until Feb.

2, 1991. This Petition for Certiorari was

filed within 90 days of the denial of the

Motion to Reconsider. The Jurisdiction of

this court is invoked under 28 U.S.C.

section 1257, and Rule 10.1 (b) and Rule

10.1 (c) of the United States Supreme

Court, the 5th and 14th Amendments to the

United States Constitution AND PUBLIC LAW

92-500 AND PUBLIC LAW 95-217, THE CLEAN

WATER ACT.

STATEMENT OF THE CASE

This suit originated in Department 6

of the 2nd Judicial District of the State

of Nevada in and for the County of Washoe

as a Petition for Writ of Mandamus,

against the Washoe County Building

Department, after the petitioner had

exhausted his administrative remedies (see

exhibit 1 presented during the hearing

before Judge Adams of the minutes of the

hearing before the board of adjustment-the

original reason the suit was dismissed

before the Supreme Court of the State of

Nevada). The petition sought to compel

the issuance of petitioners building

permits. The Washoe County Building

Department has denied building permits to

the petitioner, because another local

agency, the Washoe County District Health

Department, operating outside of its

jurisdiction (see letter attached to

Petitioner's Writ "Exhibit C" in Appendix

page A24.) , has failed and refused to

obey a court order that found petitioner

to be an agricultural user of the land;

The Washoe County District Health Depart-

ment has administratively and arbitrarily

determined, using federal law applied

incorrectly (Clean Water Act of 1977) that

petitioner is a municipal sewage facility

receiving federal funds, subject to an

intricate set of rules and permits giving

them authority they do not possess to

compel Petitioner to operate his farm

according to their arbitrary whims. So

outlandish are their requests and require-

ments, and in contradiction with federal

Jaw, which is copied by state law, that it

has resulted in Bator being denied the use

of his land and his occupation of choice,

which is to raise domestic alligators for

meat and hide which was determined by

Department 4 of the 2nd Judicial District

Court to be a normal agricultural user of

the land. Suit was brought to compel

the issuance of the requested permits. The

Second Judicial District Court Judge Brent

Adam's conduct in the suit was at best

outlandish and prejudiced. Any findings of

fact and conclusions of law which is

required by the N.R.C.P. Rule 52 is

grossly inadequate given the laws and

aaa ner

arguments introduced at the hearing. (See

argument I and II in the Brief received by

the Supreme Court of the State of Nevada).

Due to the unwillingness of the Supreme

Court of this State to hear appeals from

pro se litigants Judge Adams apparently

has nothing to fear in denying petitioner

his rights, the use of the law and

petitioner's right to be heard. And the

record reflects this.

ORIGINAL JURISDICTION

Original jurisdiction is based upon

petitioners 5th amendment rights, Nevada

Revised Statutes 278.370 and NRS 34.170.

Petitioner is being denied the use of his

property by an administrative branch of

government with no basis in law; without

due process of law; and violations of

Chepter 445 of the Nevada Revised Statues

which were adopted pursuant to Federal Law

P.L. 92-500 and 95-217 the Clean Water

Act, for revenue sharing purposes.

i (i ii

REASON FOR THE ALLOWANCE OF THE WRIT

If the conduct of the judiciary is

exemplified by the conduct of Brent Adams,

as the record reflects, and a prose

litigant is denied a right to an appeal we

have degenerated our system of law to the

rule of men. Bator has proven with the

law introduced at the hearing before Judge

Adams that he, Bator, does not needa

discharge permit, nor is he a municipal

sewer treatment works either under state

law or federal law. If the decision of

Judge Adams is not reversed Petitioner

Bator will never be permitted to operate

his farm on his property. Bator states

here for the court that the scandalous

nature events that has lead to the need to

obtain a court order to compel the

issuance of a his building permits is not

here being adjudicated. Suit will even-

tually be brought, either civil or

criminal, seeking damages and justice for

8 ei

what has been done to petitioner, however,

at this time petitioner is only seeking

the building permits which the county has

also determined administratively I am

required to obtain. If the petition is

denied I will never be able to operate my

farm in Washoe County, Nevada. A farm

which does not threaten the health, safety

or laws of the County of Washoe, State of

Nevada or the Federal Government.

DATED this /f_ day of January, 1991

nthony #7./Bator

Pro se

‘a

i —<cdil

IN THE SUPREME COURT O;* THE UNITED STATES

OCTOBER TERM 1990

ANTHONY J. BATOR JR.

Petitioner - Appellant

Vv.

WASHOE COUNTY BUILDING DEPARTMENT

Respondent - Appellee

WASHOE COUNTY

Real Party in Interest

em ee eee ee ee

AFFIDAVIT OF ERNIE ALDRIDGE

STATE OF NEVADA )

) S88:

COUNTY OF WASHOE)

I, Ernie Aldridge, being first duly

sworn do hereby depose and say:

1. That I am a citizen of the State

of Nevada and have been domiciled there

for approximately 22 years.

2. That I have attempted to file a

Writ of Prohibition in the Nevada Supreme

Court, the only Court in the State of

Nevada to have the Authority to file such

a Writ as stated in the Constitution of

5 1

the State of Nevada.

3. That this Writ has been directed

to be filed in another court’ contrary to

what is stated in the Nevada Constitution

and my Motion To Proceed Without an

Attorney was declared as moot.

4. That the Deputy Clerk has

informed me that the Nevada Supreme Court

does not allow Pro Se litigants to file

papers before the Supreme Court, except on

one occasion, when the litigant's

attorney failed to show up to represent

him.

FURTHER MORE I SAITH NOT. oi

PB >

DATED this li? day of January, 1991 a 5 3 :

‘ Z2 33!

@ Aa i 5!

Ernie Aldridge Pho Be!

135 Granada fea a BF

Fernley, Nevada 89408 (oo gat

G @ & §

SUBSCRIBED and SWORN to before Zant

me this i\Wass a of Me we 1991

urbrd c=

NOTARY \.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1990

ANTHONY J. BATOR JR.

Petitioner - Appellant

Vv.

WASHOE COUNTY BUILDING DEPARTMENT

Respondent - Appellee

WASHOE COUNTY

Real Party in Interest

ld dd

AFFIDAVIT OF MARILYN O'CONNOR

STATE OF NEVADA )

} SB:

COUNTY OF WASHOE)

I, Marilyn O'Connor, being first

duly sworn do hereby depose and say:

1. That I am a citizen of the State

of Nevada and have been domiciled there

for approximately 43 years.

2. That I have attempted to file

four appeals to the Nevada Supreme Court,

as a pro se litigant.

3. That all attempts have been met

with the same result; Appeal dismissed

arbitrarily often without opposition from

adversary and prior to any briefs being

filed. Motion to proceed without an

attorney, on appeal in proper person

declared moot.

4. That I am personally aware of at

least three other people who have met the

same results.

5. That I have had this issue

before this Court in a suit entitled

O'connor et i. « v. Palludan Corp.

#80-5061, 101 S.Ct 343, 1980. Suit was

dismissed for want of Jurisdiction. (An

apparent error because of misinformation

presented to the court by my adversary's

attorney about a suit pending in the

Federal District Court of Nevada involving

some issues presented in O'Connor v.

Palludan Corp. (supra.) In dismissing

this suit, the Nevada Supreme Court

informed me that I had failed to get an

attorney pursuant to Nevada Rules of

Appellate procedure 46(b) which

. hd is oa 7 Lar e sty

Sc - ae ale Seed aoe eo a ‘ > cA i 3

: - . —- a p= a a

, ; re a _ a -

stated;

46(b) Appearances in Proper Person;

No party except in a habeous corpus

petition may appear in proper

person before the Supreme Court.

6. Since this time I have been

involved in lobbying my state legislature

to amend that rule. It was amended in 1981

to read;

46(b) Appearances in Proper Person.

With leave of the Supreme Court a

party may file, in proper person,

written briefs and papers submitted

in accordance with these rules.

7. Since this change I Know of no

person that has been permitted to proceed

in the form of proper person before the

Supreme Court of the State of Nevada

except for one person, Dr. Thomas Mullis,

when his attorney did not show up fcr a

hearing.

FURTHER MORE I SAITH NOT.

DATED this /5" aay of January, 1991

Pome Rare hearers)

“ee

’ ‘

Se ee ee

— a nr

—_ a i

ae are Nes a ae

- - -

: "rs r

“LE Ee JOUR’ (Y (Ocix ass /

ee Ags ke Y Connor

870 Soda Lake Road

Fallon, Nevada

SUBSCRIBED and SWORN to before

me this [> day of January, 1991

4m (tLe bee :

NOTARY

: ROBIN ELLEDGE _})

296) Notary Public - State of Nevada

; } Appointment Recorded in Washoe County

MY APPOINTMENT EXPIRES JAN 16, 1993

ria eer

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1990

ANTHONY J. BATOR JR.

Petitioner - Appellant

Vv.

WASHOE COUNTY BUILDING DEPARTMENT

Respondent - Appellee

WASHOE COUNTY

Real Party in Interest

etl ed

AFFIDAVIT OF DENNIS O'CONNOR

STATE OF NEVADA )

) ss:

COUNTY OF WASHOE)

I, Dennis O'Connor, being first

duly sworn do hereby depose and say:

1. That I am a citizen of the State

cf Nevada and have been domiciled there

for approximately 37 years.

2. That I have attempted to file

two appeals to the Nevada Supreme Court,

as a pro se litigant.

3. That all attempts have been met

with the same result; Appeal dismissed

arbitrarily often without opposition from

adversary and prior to any briefs being

filed. Motion to proceed without an

attorney, on appeal in proper person

declared moot.

4. That I am personally aware of at

least three other people who have met the

same results.

5. That I have had this issue

before this Court in a suit entitled

O'connor et UX., v. Palludan Corp.

#80-5061, 101 S.Ct 343, 1980. Suit was

dismissed for want of Jurisdiction. (An

apparent error because of misinformation

presented to the court by my adversary's

attorney about a suit pending in the

Federal District Court of Nevada involving

some issues presented in O'Connor v.

Palludan Corp. (sSupra.) In dismissing

this suit, the Nevada Supreme Court

informed me that I had failed to get an

attorney pursuant to Nevada Rules of

Appellate procedure 46(b) which

stated;

46(b) Appearances in Proper

Person; No party except

in a habeous corpus petition may

appear in proper person before

the Supreme Court.

6. Since this time I have been

involved in lobbying my state legislature

to amend that rule. It was amended in 1981

to read;

46(b) Appearances in Proper

Person. With leave of the Supreme

Court a party may file, in proper

person, written briefs and papers

submitted in accordance with

these rules.

7. Since this change I know of no

person that has been permitted to proceed

in the form of proper person before the

Supreme Court of the State of Nevada

except for one person, Dr. Thomas Muliis,

when his attorney did not show up for a

hearing.

FURTHER MORE I SAITH NOT.

DATED this 74 day of January, 1991

Dennis O'Connor

870 Soda Lake Road

Fallon, Nevada

ay ona 9 nd SWORN to before

s day of January, 1991

peeaeit peceueanedecee me RYTTTTT TL LL Lcabeheaan

STACEY D. O'FARRELL

Public - State of Nevada

6 In Washoe County

6, 1992 =

Notary

Appointment Pecorde

My APPOINTMENT EXPIRES MAY 1

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1990

ANTHONY J. BATOR JR.

Petitioner - Appellant

Vv.

WASHOE COUNTY BUILDING DEPARTMENT

Respondent - Appellee

WASHOE COUNTY

Real Party in Interest

Ne me ee ee ee ee ee ee ee

AFFIDAVIT OF PAUL L. PIPITONE

STATE OF NEVADA )

) ss:

COUNTY OF WASHOE)

I, Paul L. Pipitone, being first

duly sworn do hereby depose and say:

1. That I am a citizen of the State

of Nevada and have been domiciled there

for approximately 8 years.

2. That I have attempted to file

numerouS appeals to the Nevada Supreme

Court, aS a pro se litigant.

3. That all attempts have been met

with the same answer to wit: My motions to

proceed without an attorney have been

denied as moot as the Supreme Court of the

State of Nevada has summarily dismissed

each suit without allowing this Petitioner

or Appellant to file briefs to this Court.

4. That the Deputy Clerk has

informed me on all these occasions that

the Nevada Supreme Court does not allow

Pro Se litigants to file papers or

exercise their right to appeal as _ no

Pro se litigant has ever appeared before

the Supreme Court except on one occasion,

when the litigant's attorney failed to

show up to represent him.

5. That I know of other people th

County:

1992:

Re)

have had the same results. w 3

FURTHER MORE I SAITH NOT. ¢

1d)

DATED meee 2S 1991

Paul L. Pipitone

1665 Lehigh St.

Reno, Nevada 89502

10ed in Washoe

NT EXPIRES Dec.

SUBSCRIBED and SWORN to before

me this AltA day of January, 1991

Kam nw U Lage

' NOTARY ‘

‘

eemeeede |

RAMONA O'DAYE

Notary Public - State ot Nevada i

7 Appointment Recorded in Washoe County:

OOOO NOC Or oe reercersere,

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1990

ANTHONY J. BATOR UR.

~etitioner - Appellant

Vv.

WASHOE COUNTY BUILDING DEPARTMENT

Respondent - Appellee

WASHOE COUNTY

Real Party in Interest

a RR ad

AFFIDAVIT OF ALBERT R. SALMAN

STATE OF NEVADA )

) ss:

COUNTY OF WASHOE)

I, ALBERT R. SALMAN, being duly

sworn, deposes and says:

1. That I am ae citizen of the

State of Nevada, United States of America,

and have domiciled there for thirty (30)

years;

2. That I have attempted to file

numerous appeals to the Supreme Court of

the State of Nevada as an In Propria

Personae litigant. That the most current

attempt is numbered 21704 in the Supreme

Court of the State of Nevada;

3. That all my attempts have met

with the same answer: ".....we deny as

moot the petitioner's motion to submit

briefs and papers on proper person."; and

4. That I have been previously

informed by the Deputy Clerk that the

Supreme Court of the State of Nevada does

not allow Propria Personae litigants to

file papers and/or exercise their appeal

rights.

FURTHER MORE I SAITH NOT. ie

DATED this day of January, 1991

_ ,

eA San ses

ALBERT R= SALMAN

Second Judicial District

P.O. Box 7492

Reno, Nevada

SUBSCRIBED and SWORN to before

me this /G_ day of January, 1991 Bf

LZ. =

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

Case No.

ANTHONY J. BATOR

Appellant-Petitioner,

vs.

WASHOE COUNTY BUILDING DEPARTMENT

AND WASHOE COUNTY,

Appellee-Respondent

APPENDIX

Anthony J. Bator

1605 Ambassador Dr.

Reno, Nevada 89503

(702) 747-3964

TABLE OF CONTENTS (APPENDIX)

PETITION FOR WRIT OF MANDAMUS..... ccccecs A3

ANSWER Washoe County District Attorney.A26

JUDGEMENT, Department 6, of the Second

Judicial District Court of

the State of Nevada in and for

the County of Washoe, Case No.

CVE =< TES Ss ccc wesc sesesscecoeces A68

MOTION TO PROCEED WITHOUT AN ATTORNEY in

the SUPREME COURT OF THE STATE OF

NEVADA....... -WEETEREEECECEEEEE LETT A73

BRIEF FOR THE APPELLANT....-.ccccccccce A74

ORDER DISMISSING APPEAL from the SUPREME

a a -

a an =

rT = SS en

PETITION FOR WRIT OF MANDAMUS

FILED JANUARY 4, 1990

IN THE SECOND JUDICIAL DISTRICT COURT OF

THE STATE OF NEVADA IN AND FOR THE COUNTY

OF WASHOE

ANTHONY J. BATOR )

Petitioner )

)No.

)

vs. )PETITION FOR

) WRIT

WASHOE COUNTY BUILDING DEPT.)OF MANDAMUS

Respondent. )

WASHOE COUNTY

Real Party in Interest

1. Petitioner is Anthony J. Bator.

2. Respondent is Washoe County Building

Dept. Responsible for the issuance of

building permits.

3. Real party in interest is Washoe County

acting through its District Attorney

who has directed the building depart-

ment not to issue building permits

until petitioner complies with arbit-

rary operating conditions and needless

requests for information attempted to

be imposed upon petitioner by the

Washoe County Board of Health and

previously attempted to be imposed by

Washoe County Planning Department as

the conditions of a "Special use

permit" which this court held to be

unnecessary in action CV 89-4760.

4. Petitioner has a clear, present and

substantial vight to performance of

respondent's duty in that his submitted

plans are for buiidings for agricul-

tural pur>doses and in respondents

refusal to issue said permits are

denying petitioner use of his land and

his occupation of choice.

5. Petitioner is in cJmpliance with all

pertinent laws under the jurisdiction

of the various departments these plans

are submitted. Respondent, Washoe

County Building Department, has

abused its discretion by denying

petitioner building permits, that would

permit petitioner to proceed with the

construction of said facilities.

ORIS CORBRIDGE, in an affidavit,

attached as Exhibit "A" identifies himself

as the "Chief Building Inspector" of the

Building and Safety Division of the Washoe

County Department of Public Works. This

makes ORIS CORBRIDGE the "building

official" as provided in Washoe Building

Code section 100.420.

Section 100.070 of the Washoe

County Code amends section 303 of the

Uniform Building Code and states as

follows;

Permits, Issuance

Sec, 303. (a) Issuance. The

application, plans and specifica-

tions and other data filed by an

applicant for permit shall be

reviewed by the building official.

Such plans may be reviewed by other

departments of this jurisdiction to

verify compliance with any arplic-

able laws under their jurisdiction.

If the building official finds that

the work described in an applica-

tion for a permit and the plans,

specifications and other data filed

therewith conform to the require-

ments of this code and other

pertinent laws and ordinances, that

the fees specified in section

100.075 of this code have been

paid, and the written confirmation

required by section 100.065 of this

code has been submitted, he shall

issue a permit therefor to the

applicant."

Therefore, ORIS CORBRIDGE as

the building official has the duty to

determine the applicable law and ordi-

nances that would require him te withhold

said permits.

Petitioner has asked for, but

never received, from the Washoe County

Building Department, of which ORIS

CORBRIDGE is the designeted "building

official", any law or ordinance that

supports the withholding of said building

permit.

ORIS CORBRIDGE, in his Affidavit,

attempts to shift his duty as stated in

the Washoe County Code section 100.070 to

other departments of the county. Peti-

tioner, Anthony J Bator, understands that

the "building official" may not be

familiar with all of the laws and ordi-

nances pertaining to his dutiss but in

such circumstances he should request and

obtain a legal opinion in writing from the

legal entity voicing such concern along

with the appropriate laws and ordinances

that would support his denial of issuing

said court ordered permits. Upon request

of the petitioner, from the appropriate

entities involved no such laws or

ordinances have been supplied.

Petitioner because of his unlawful

denial has been compelled to research the

applicable law pertaining to claims made

by the Washoe County Health Department in

its letter dated October 25,1989 and

attached as Exhibit "B". The applicable

law regarding discharges is the Water

Pollution Control Act of 1972; Public

Law 92-500, a revenue sharing Act between

the Federal Government and the State of

Nevada. This legislation P.L. 92-500 in

section 208 dealing with "Area Wide Waste

Treatment Management" identifies in

subsection 208(b)(2)(F) "agriculture" as

a “non-point source of pollution" and the

State of Nevada in enacting its own

legislation followed this federal legisla-

tion by equating "diffuse source" as

provided in NRS 445.147 with the federal

definition of "non-point source".

Attathed as Exhibit "D" is the

STATE OF NEVADA REGULATION FOR CONTROL OF

WATER POLLUTION FROM DIFFUSE SOURCES.

Equating these regulations to the Nevada

Administrative Code section 445.210

“Administration of controls by municipal-

ity: Jurisdiction.” it is stated as

follows;

"The municipality may apply

specific measures of control only

for those surface waters within its

jurisdiction in which pollution

from a diffuse source has been

determined to contribute to a

violation of standards for water

quality." (emphasis added)

And in section 445.211 which deals

with the "Administration of controls by

municipality: Determination of Water

Pollution" it is stated in section 1 and 2

as follows;

"1. If a municipality has been

delegated authority to administer

controls from diffuse sources, it

must establish 4 program to

administer the controls. The

municipality may proceed with the

administration only if its

governing body or the division

first determines that there exists

within or originates from the

territory of the municipality

water pollution from one or more

diffuse sources and the pollution

contributes to a violation of

standards for water quality."

"2. Such a determination must be

based on the results surveying,

sampling or testing the affected

surface waters or pursuant toa

written complaint by any person

filed with the municipality and

proof of damage to him caused by

pollution of those waters from a

diffuse source.

Any similar complaint filed

with the division or the state

agency must be immediately

referred to the appropriate

municipality for prompt investiga-

tion and disposition.

It is clear that none of these

requirements have been compiied with, and

the required determinations that must be

made upon a factual basis do not exist.

Attached as Exhibit "C" is a letter

from Chief, Permits and Compliance RICHARD

E. REAVIS of the STATE DEPARTMENT OF

CONSERVATION AND NATURAL RESOURCES

DIVISION OF ENVIRONMENTAL PROTECTION

stating that delegation for the NATIONAL

POIT.UTION DISCHARGE ELIMINATION SYSTEM

permits program has not been delegated to

the Washoe County Health Department or

any other government agency.

Washoe County Health Departments

Claim that Petitioner is operating a

Treatment Works is unsubstantiated. ORIS

CORBRIDGE has been notified that the

definition of "Treatment Works" under

federal law is defined in P.L. 92-500

Section 212(2) (A)

“any devices used in the storage,

treatment, recycling, and

reclamation of municipal sewage or

industrial wastes of a liquid

nature to implement section 201 of

this Act"

A10

Section 201 of P.L.92-500 is the

opening section of "TITLE II-GRANTS FOR

CONSTRUCTION OF TREATMENT WORKS". Peti-

tioner states that he is and never will

receive any federal funds.

In the NRS 445.186

"Treatment Works" means:

Any device and system used in

the storage, treatment,

recycling and reclamation of

municipal sewage or indus-

trial wastes of a liquid nature,

including intercepting sewers,

outfall sewers, sewage collec-

tion systems, pumping, power and

other equipment and their

appurtenances;

Petitioner further states in NRS

Chapter 202 Titied "CRIMES AGAINST PUBLIC

HEALTH AND SAFETY" section 202.450(4)

states:

"4. Agricultural activity conducted

on farmland consistent with

good agricultural practice and

established before surrounding

nonagricultural activities is

not a public nuisance unless it

has a substantial adverse

affect on the public health or

safety. It is presumed that an

agricultural activity which

does not violate a federal,

state or local law, ordinance

All

or regulation constitutes good

agricultural practice."

Petitioner cannot at this time be

guilty of any adverse affects upon the

Public Health because the Washoe County

Building Department has stopped him from

building his facilities.

6. Petitioner has no plain, speedy,

and adeguate remedy in the ordinary course

of law, other than the relief sought in

this petition.

CONCLUSION

Administrators of Washoe County

Government have no jurisdiction to manage

Petitioners farm or deny Petitioner,

Bator, his building permits, and in

attempting to do so they are denying

Petitioner the use of his land, his

occupation of choice, his inalienable

rights and equal protection of the law as

provided in the 14th Amendment to the

Constitution of the United States.

Al2

(am

WHEREFORE, Petitioner prays:

1. That the court issue an alter-

nate Writ of Mandamus commanding the

respondent to issue the demanded building

permits or show cause before this court at

a time specified by court order why it

has not done so and why a peremptory

writ should not issue.

2. That on the return of the

alternative writ ant the hearing of this

petition, this court issue its peremptory

writ of Mandamus commanding respondent to

issue the building permits.

3. For the return of the $200.00

hearing fee and costs of this proceeding.

Dated: December 26,1989

Petitioner, pro se

VERIFICATION

Es Anthony J. Bator, am the

petitioner in this proceeding. I have

Al3

prepared the foregoing petition and know

the contents thereof.

SUBSCRIBED and SWORN to before me

this day of 1989.

NOTARY PUBLIC

Al4

EXHIBIT "A"

APFIDAVIitT

STATE OF NEVADA )

COUNTY OF WASHOE ) si

ORIS CORBRIDGE, being first duly

sworn under penalty of perjury deposes and

says:

1. I am the Chief Building Inspec-

tor of the Building and Safety Division of

the Washoe County Department of Public

Works.

2. Upon receipt of the Order issued

on October 17, 1989, by the Honorable Roy

Torvinen, District Judge, in the case of

Anthony J. Bator, Jr v. Washoe County

Building Department, (No. CV89-4760), I

reviewed said Order and have fully

complied with it to the best of my

knowledge, ability and understanding as

follows:

a. Mr. Bator's application for a

building permit for farm structures on his

Al1L5

forty-acre parcel of property has been

considered by this Division and has been

processed as would any other application

for a building permit, without reference

to any necessity of his first obtaining a

special use permit from the Washoe County

Board of Adjustment.

b. In accordance with this, the

Washoe County Department of Comprehensive

Planning has signed off on Mr. Bator's

plans for the structures with respect to

the zoning issues.

c. Said plans have been forwarded

to the District Health Cease for its

review in accordance with normal building

permit application procedures under the

Uniform Building Code as adopted by Washoe

County. (Chapter 100 of the Washoe

County Code).

dad. As noted by the letter attached

hereto as Exhibit "A", the District Health

Department has thus far not approved Mr.

Al6

Bator's plans as said plans are incomplete

as submitted.

e. . Until the concerns of the

District Health Department are addressed

and the plans are approved by said

Department, this office cannot issue a

building permit to Mr. Bator for his farm

structures.

—

DATED this 16 day of November, 1989.

ORIS CORBRIDGE

Subscribed and Sworn to before me

this 16 day of November, 1989.

NOTARY PUBLIC

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EXHIBIT "B"

DISTRICT HEALTH DEPARTMENT

October 25, 1989

Anthony J. Bator

1605 Ambassador Drive

Reno, Nevada 89523

RE: Building permit Plan Review for an

Alligator Rearing Facility

Dear Mr. Bator:

This department has the authority under

Federal, State and local regulations to

review and approve developments in terms

of solid waste, waste water disposal,

water supply and wate ~ quality, air

pollution and odor controls, vector

control, as well as other environmental

concerns.

The plans submitted are incomplete and

do not contain adequate information for a

proper review. In an attempt to expedite

this project, staff has contacted a number

of experts who have provided information

A18

that allowed some additional review of the

reference project.

The referenced project has changed

somewhat since the original proposal in

April of this year. Based upon conversa-

tions with these experts, correspondence,

and the incomplete plans submitted on

October 23,1989, the following is a

summary of the proposed operations:

1. The proposed alligator rearing

facility will handle 1,000 to 2,000

alligators in a series of round concrete .

tanks with domed roofs.

2. The water source for the

proposed operation are two wells on the

property. the wells are to supply water

for filling and washing down the alligator

tanks and for domestic water for the

proposed house. The alligator tanks are

proposed to be heated with the geothermal

well on Site. No plan has been submitted

on the heating system. The applicant has

Al9

a lies

iJ q - -

not. submitted proof of water rights with

the construction permit application

or a geothermal disposal plan.

3. The proposed alligator food is

to be fish, chicken, horse or beef. A five

to six foot alligator will eat between

three (3) and four (4) pounds of meat

daily. With 1,000 to 2,000 alligators on

site, an operation plan must be developed

for hauling, storing and handling a large

quantity of meat without posing a nuisance

or health hazard. No information on this

phase of the operation has been submitted.

4. The alligator tanks are proposed

to be drained once daily into two (2)

settling ponds. The ponds are proposed to

be operated under anaerobic condition.

Anaerobic lagoon, with or without primary

settling, have a high potential for severe

odor problems. No lining is specified for

the settling ponds. The soils in the area

have fast percolation rates. Any leakage

A20

from the lagoons will have a high poten-

tial of anit water pollution. The tank

discharge will be comprised of water,

alligator excrement, urine and alligator

food residue.

Section 120.005 of the Washoe

County District Board of Health Regula-

tions Governing Sewage, Waste water and

Sanitation states that all sewage,

grey water and waste water management

methods not specifically authorized by

these regulations must be approved by

the District Health Department.

As states above, the referenced

plans are incomplete as submitted and

therefore cannot be approved at this time.

Before the District Health Department can

complete our review of the proposed

facilities, the following items must be

submitted to this office:

1. A discharge permit from the

State Division of Environmental Protection

A21

re =

is required and must be obtained before

the District Health Department will

approve any administrative permits for the

proposed facility.

2. A complete operation plan

addressing the above items. The operation

plan must include:

a. The alligator food hauling,

storage, and handling facilities.

b. The liquid waste quality and

discharge rates for each phase of the

operation.

c. A solid waste and/or sludge

disposal plan including water balance and

nutrient loading versus plant uptake

calculations.

3. The construction plans must

incorporate the above information into the

design of the facilities.

4. The construction plans must be

submitted to the State Division of

Environmental Protection.

A22

Dall ’ - a wa

ak os) ete ;

If there are any questions, please

contact me at 328-2430

Sincerely

Douglas L. Coulter

Environmental Engineer

Environmental Health Services

DLC: sw

CC:

Carl Cahill

Jim Begbie

L.H.Dodgion, DEP

Al Porta, DEP

Wendell McCurry, DEP

Julian Balowski, DEP

Brent Carithers, Building Dept.

Rusty Nash, District Attorney's Office

District Judge Roy Torvinen

A23

EXHIBIT "Cc"

DATED DECEMBER 19, 1989

DEPARTMENT OF CONSERVATION AND NATURAL

RESOURCES

DIVISION OF ENVIRONMENTAL PROTECTION

201 South fall Street

Carson City, Nevada 89710

December 19, 1989

Tony Bator

1605 Ambassador Dr.

Reno, NV 89502

Dear Mr. Bator

In response to your inquiry, the

federal Environmental Protection Agency

has delegated administration of the

National Pollution Discharge Elimination

System permits program to the Nevada

Division of Environmental Protection. This

responsibility has not been re-delegated

to any other state of local agency.

I hope that this information

adequately responds to your question.

Sincerely,

Richard E. Reavis

Chief, Permits and Compliance

RER/srb:1

A24

“

EXHIBIT "D"

STATE

OF NEVADA

REGULATION FOR CONTROL OF

WATER

POLLUTION FROM

DIFFUSE SOURCES

NEVADA DIVISION OF ENVIRONMENTAL PROTEC-

TEXT

COURT

TION

OMITTED BUT SUPPLIED IN DISTRICT

AND IS A MATTER OF COURT RECORDS.

A25

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any

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ANSWER by Respondent

DATED JANUARY 25, 1990

No. CV89-7653

Dept. No. 6

IN THE SECOND JUDICIAL DISTRICT COURT OF

THE STATE OF NEVADA IN AND FOR THE COUNTY

OF WASHOE

ANTHONY J. BATOR JR.,

Petitioner,

Vv. ANSWER

WASHOE COUNTY BUILDING DEPT.,

Respondent.

WASHOE COUNTY

Real Party in Interest

COMES NOW the above named Respon-

dent, by and through the Office of the

District Attorney of Washoe County, its

attorney, and in answer to Petitioner's

Petition for Writ of Mandamus on file

herein, admits denies and alleges as

follows:

A26

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eae -

a ‘aa

1. Admits the allegation contained

in paragraph l.

2. Admits that the Building and

Safety Division of the Washoe County

Department of Public Works is responsible

for the review of applications for

building permits and the issuance thereof

if such applications are in conformance

with various, state and federal require-

ments including, but not limited to, State

and local health regulations.

3. Admits that it cannot issue a

building permit to Petitioner unless and

until the plans thereof are approved by

the Washoe County District Health Depart-

ment as being in conformance with State

and local regulations.

4. Denies that Petitioner has a

clear, present and substantial right to

the issuance of a building permit at the

present time, and instead alleges that the

Petitioner has no right to the issuance

A27

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“

hei

7 ,

—-

of a building permit unless and until it

is determined that the application

therefor is in conformance with any and

all applicable county, state and federal

requirements. Denies the remaining

allegations of Paragraph 4 of Petitioner's

Petition.

5..- Denies that "Petitioner is in

compliance with all pertinent laws under

the jurisdiction of the various depart-

ments these plans are submitted." Denies

that "Respondent, Washoe County Building

Department, has abused its discretion by

denying petitioner building permits, that

would permit petitioner to proceed with

construction of said facilities." Admits

that "Oris Corbridge in an affidavit,

attached as Exhibit A identifies himself

as the Chief Building Inspector of the

Building and Safety Division of the Washoe

County Department of Public Works."

Admits that "This makes Oris Corbridge the

A28

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bt ‘? onde =

a ee, ee. one

wm 0lUmUlU 1 :

building official as provided in Washoe

Building Code section 100.420." Admits

that "Section 100.070 of the Washoe County

Code amends section 303 of the Uniform

Building Code and states as follows;

‘Permits, issuance

Sec, 303. (a) Issuance. The

application, plans and specific-

ations and other data filed by an

applicant for permit snall be

reviewed by the building official.

Such plans may be reviewed by other

departments of this jurisdiction to

verify compliance with any applic-

able laws under their jurisdiction.

If the building official finds the

work described in the application

for a permit and the plans,

specifications and other data filed

therewith conform to the require-

ments of this wode and other

pertinent laws and ordinances, that

the fees specified in section

100.075 of this code have been

paid, and the written confirmation

required by section 100.065 of this

code has been submitted, he shall

issue a permit therefor to the

applicant."

Denies that "Therefore, ORIS

CORBRIDGE as the building official has the

duty to determine the applicable law and

ordinances that would require him to

withhold said permits." Respondent instead

A29

alleges, as specifically provided for in

Section 100.070 of the Washoe County Code,

that the plans submitted by an applicant

for a building permit "may be reviewed by

other departments of this jurisdiction to

verify compliance with any applicable laws

under their jurisdiction;" and ORIS

CORBRIDGE, as the building official, has

not only the right but the legal obliga-

tion thereunder to rely upon the advice of

such other departments with respect to

compliance with any applicable laws,

ordinances or regulations under their

jurisdiction.

The remaining allegations contained

in Paragraph 5 are not readily susceptible

to standard admissions or denials in that

they are basically legal arguments rather

than factual allegations, which Respondent

has addressed, to the extent necessary,

in its Memorandum of Points and Author-

ities in Opposition to Petitioner's

A30

Application for Writ of Mandamus, which

will be filed in conjunction with this

Answer.

6. Denies the allegations of

Paragraph 6 of Petitioner's Petition.

WHEREFORE, Respondent prays for

judgement as follows:

1. That Petitioner take nothing by

reason of its Petition on file herein; and

2. That Petitioner's Petition be

dismissed forthwith with prejudice; and

3. That the Alternative Writ of

Mandamus granted herein be discharged; and

4. That the Respondent be awarded

reasonable attorney's fees and costs of

Suit; and

5. For such other and further

relief as the Court may deem just and

proper.

DATED this 22nd day of January, 1990.)

MILLS LANE

Washoe County District Attorney

A31

RUSSELL S. NASH Jr.

Deputy District Attorney

P.O. Box 11130

Reno, Nevada 89520

ATTORNEY FOR RESPONDENT

A32

STATE OF NEVADA )

: SS.

COUNTY OF WASHOE )

ORIS L. CORBRIDGE, being first duly

sworn, On oath deposes and says: That he

is the Chief Building Inspector for Washoe

County, the Respondent in the above

entitled matter; that he has' read the

above and foregoing Answer and knows the

contents thereof; that the same is true of

his own knowledge, except for any matters

therein alleged on information and belief,

and as to those matters he believes them

to be true.

RESPONDENT

Subscribed and sworn to before me

this 25 day of January, 1990

NOTARY PUBLIC in and for said

County and State

A33

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os ST oe

———

sil

MEMORANDUM OF POINTS AND AUTHORITIES IN

OPPOSITION TO PETITIONER'S APPLICATION FOR

WRIT OF MANDAMUS

DATED JANUARY 25, 1990

No. CV89-7653

Dept. No. 6

IN THE SECOND JUDICIAL DISTRICT COURT OF

THE,STATE OF NEVADA IN AND FOR THE COUNTY

OF WASHOE

ANTHONY J. BATOR JR.,

Petitioner,

Vv. MEMORANDUM OF

POINTS AND AUTHORITIES

IN OPPOSITION TO

PETITIONER'S APPLICATION

FOR A WRIT OF MANDAMUS

WASHOE COUNTY BUILDING DEPT.,

Respondent.

WASHOE COUNTY

Real Party in Interest

STATEMENT OF FACTS

A34

Petitioner, Anthony J. Bator Jr.,

is the owner of a parcel of property

approximately 40.96 acres in size in an

A-7 (Third Rural Conservation) zone,

located in Section 26,T22N, R20E, MDB&M,

Washoe County, Nevada. The physical

address of the property is 7000 Winnemucca

Ranch Road, and it is located in an

area commonly known as _ Palomino Valley

(Warm Springs Valley) off Pyramid Lake

Highway. Petitioner wishes to construct

and operate an alligator farm, consisting

of 11 circular facilities housing a

maximum of approximately 2,000 alligators,

for the purpose of raising alligators for

meat and hide; and he has submitted an

application for a building permit therefor

with the Building and Safety Division of

the Washoe County Department of Public

Works.

As noted by the Affidavit of Oris

Corbridge, Chief Building Inspector, which

A35

is attached thereto, Mr. Bator's applica-

tion for said building permit has been

processed by his Division as would any

other application for a building permit.

The normal building permit application

procedures under the Uniform Building

Code as adopted by Washoe County (Chapter

100 of the Washoe County Code) provide for

the review of plans by other agencies

to verify compliance with any applicable

laws under their jurisdiction. One of

those normal reviewing agencies is the

Washoe County District Health Department

-which, incidently, is not a County

Department but a separate legal entity

governed by the District Board of Health.

The District Health Department has

thus far not approved Mr. Bator's plans

because said plans are incomplete under

state law and the regulations adopted

thereunder by the District Board of

Health. The letter to Mr. Bator dated

A36

October 25, 1989, from Doug lL. Coulter,

Environmental Engineer for the District

Health Department, a copy of which is

attached to Oris Corbridge's Affidavit as

Exhibit "A", clearly spells out the Health

Department's concerns and the steps

necessary to satisfy those concerns. One

of the major deficiencies, as noted by the

letter from the Nevada Division of

Environmental Protection to Petitioner

dated July 17, 1989, a copy of which is

attached to Oris Corbridge's Affidavit as

Exhibit "B", is the need to obtain a

discharge permit for the proposed alliga-

tor raising facility. As noted by said

letter, the construction of any treatment

works cannot be initiated without the

issuance of a discharge permit and the

approval of plans and specifications

therefor. To date, the District Health

Department has been advised that Peti-

tioner has neither applied for nor been

A37

issued the discharge permit required by

the Nevada Division of Environmental

Protection. Unless and until Mr. Bator

addresses those concerns, which he

has been aware of for many months, the

District Health Department will not

approve his plans and sign off on his

building permit application. Without the

approval of the District Health Depart-

ment, the Washoe County Building Depart-

ment cannot, in accordance with the

Uniform Building Code (Chapter 100 of the

Washoe County Code), issue Mr. Bator a

building permit for his farm buildings.

As soon as Mr. Bator secures the approval

of the District Health Department, the

Washoe County Building Department will

issue him his building permit.

ISSUES

1. Does Petitioner have a -plain,

A38

speedy and adequate remedy in the ordinary

course of law?

2. Is Petitioner entitled to the

issuance of a building permit in spite of

the refusal of the Washoe County Health

Department to approve the plans therefor.

3. Should Petitioner be required to

seek relief against the proper parties,

i.e., the Nevada Division of Environmental

Protection and the Washoe County District

Health Department, rather than against the

Washoe County Building Department?

III

ARGUMENT

1. MANDAMUS IS NOT A PROPER REMEDY

BECAUSE PETITIONER HAS A PLAIN SPEEDY AND

ADEQUATE REMEDY AT LAW

State law provides a simple

procedure for attempting to resolve

disputes such as we have herein prior to

resort to the courts. NRS 278.300 provides

in pertinent part as follows:

A39

"278.300 Powers.

1. The board of adjustment shall

have the following powers:

(a) To hear and decide appeals

where it is alleged by the appel-

lant that there is an error in

and order, requirement, decision or

refusal made by a administrative

official or agency based on or made

in the enforcement of any zoning

regulation or any regulation

relating to the location or

soundness of structures.

2. The majority vote of the board

of adjustment is necessary to

reverse any order, requirement,

decision or determination of any

administrative official or agency,

or to decide in favor of the

appellant."

NRS 278.310 (1) (a) goes on to provide as

follows:

A40

"278.310 Appeals to board of

adjustment:

Who may appeal; procedu.e.

1. Appeals to the board of adjust-

ment may be taken by:

(a) Any person aggrieved by his

inability to obtain a building

permit, or by the decision of any

administrative officer or agency

based upon or made in the course of

the administration or enforcement

of the provisions of any zoning

regulation or any regulation

relating to the location or sound-

ness structures."

Petitioner is clearly a person

aggrieved by his inability to obtain a

building permit because of the decision of

an administrative officer of agency. (The

Building and Safety Division of the Washoe

County Department of Public Works) based

upon or made in the course of the adminis-

tration or enforcement of the provisions

of any regulation relating to the location

or soundness of structures (Chapter 100 of

the Washoe County Code). Petitioner's

failure to appeal the Building Official's

decision to the Board of Adjustment

renders this controversy unripe for

A4l

judicial determination at this time.

Since Petitioner has clearly not

exhausted his administrative remedies and,

in fact, has a plain, speedy and adequate

remedy of law, his Petition for Mandamus

is premature and should be dismissed

forthwith. As provided in NRS 34.170,

Mandamus iS available only in those cases

where there is not a plain, speedy

and adequate remedy in the ordinary course

of law. County of Washoe v. City of

Reno,77 Nev. 152, 360 P.2d 602 (1961);

State ex rel. Schumacher v. First Judicial

Dist. Court, 77 Nev.408, 365 P.2d 646

(1961): Trelease v. State ex rel. Bullock,

88 Nev. 615, 503 P,2d 1 (1973).

2. THE BUILDING CODE REQUIRES THE

ISSUANCE OF A BUILDING PERMIT ONLY IF THE

BUILDING OFFICIAL FINDS THAT THE WORK DES-

CRIBED IN AN APPLICATION FOR A PERMIT AND

THE PLANS, SPECIFICATIONS AND OTHER DATA

FILED THEREWITH CONFORM TO THE REQUIRE-

A42

ity

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MENTS OF THE BUILDING CODE AND OTHER

PERTINENT LAWS AND ORDINANCES.

Section 100.070 of the Washoe

County Code amends section 303 of the

Uniform Building Code and provides as

follows;

"Permits, Issuance

Sec, 303. (a) Issuance. The

application, plans and specific-

ations and other data filed by an

applicant for permit shall be

reviewed by the building official.

Such plans may be reviewed by

other departments of this jurisdic»

tion to verify compliance with

any applicable laws under their

jurisdiction. If the building

official finds that the work

described in a application and

other data filed therewith conform

to the requirements of this

code and other pertinent laws and

ordinances, that the fees specified

in section 100.075 of this code

have been paid, and the written

confirmation required by section

100.065 of this code has been

submitted, he shall issue a permit

therefor to the applicant."

(Emphasis added).

The above quoted section

clearly requires a finding by the building

official that the work described in an

application for a permit, and the plans,

A43

specifications and other data filed

therewith conforms not only t the require-

ments of the building code but to other

pertinent laws and ordinances. Said

section also clearly provides that the

building official may have such plans

reviewed by other departments to ensure

compliance with any applicable laws under

their jurisdiction.

As noted previously, Petitioner's

application for a building permit has been

processed in accordance with the provi-

sions of Section 100.070 of the Washoe

County Code, just as all such applications

are. The application has been sent to the

Washoe County District Health Department

to verify compliance with the applicable

laws, ordinances and regulations under

their jurisdiction.

Fursuant to NRS 439.150 the State

Board oc Health is declared to be "supreme

in all nonadministrative health matters."

A44

rt has general supervision over all

matters, except for nonadministrative

health matters, "relating to the preserva-

tion of the health and lives of citizens

of the state and over work of the state

health officer and all local (district,

county and city) health departments,

boards of health and health officers."

Pursuant to NRS 439.370, the board

of county commissioners and the governing

bodies of any incorporated cities in such

county may, with the approval of the state

board of health, create a health district

health officer and a district board of

health. Pursuant to NRS 439.4105 a

district board of health may adopt

regulations, subject to the approval of

the state board of health, to:

"(a) Prevent and control nuisances;

(b) Regulate sanitation and

Sanitary practices in the interest

of the public health;

protection of water and food

supplies; and

(d) Protect and promote the public

A45

health generally in the geographi-

cal area subject to the jurisdic-

tion of the health district."

Pursuant to the above, Washoe

County, and the cities of Reno and Sparks,

have created the Washoe County District

Health Department, governed by the

District Board of Health; and the District

Board of Health has adopted extensive

regulations pursuant to NRS 439.410, which

regulations have been approved by the

state board of health. As noted in the

October 25, 1989 letter from Douglas F.

Coulter, Environmental Engineer for the

Washoe County District Health Department,

to Petitioner, the Department "has the

authority under Federal, State and local

regulations to review and approve develop-

ments in terms of solid waste, waste water

disposal, water supply and water quality,

air pollution and odor controls, vector

control, as well as other environmental

concerns."

A46

Pursuant to the above-cited

authority, the District Health Department

has thus far not approved Petitioner's

plans because said plans are incomplete

under state law and regulations adopted

thereunder by the District Board of

Health. One of the major deficiencies, as

noted by the letter from the Nevada

Division of Environmental Protection to

Petitioner dated July 17, 1989, a copy of

which is attached to Oris Corbridge's

Affidavit as Exhibit "B", is the need to

obtain a discharge permit for the proposed

alligator rearing: facility. As noted

by said letter, the construction of any

treatment works cannot be initiated

without the issuance of a discharge permit

and approval of plans and specifications

therefor. To date, the District Health

Department has been advised that Peti-

tioner has neither applied for nor been

issued the discharge permit required

A47

by the Nevada Division of Environmental

Protection. Unless, and until the concerns

of the Washoe County District Health

Department and the Nevada Division of

Environmental Protection are addressed and

the plans are approved by said Department,

the County cannot legally issue a building

permit to Petitioner for his proposed

alligator facility.

III

PETITIONER'S CONCERNS ARE DIRECTED AGAINST

THE STATE DIVISION OF ENVIRONMENTAL

PROTECTION AND THE WASHOE COUNTY DISTRICT

HEALTH DEPARTMENT, AND HE SHOULD ADDRESS

SAID CONCERNS TO THEM, NOT THE WASHOE

COUNTY BUILDING DEPARTMENT.

The Building Department is bound by

the provisions of federal, state and local

laws, ordinances and regulations, not just

the narrow technical provisions of the

Building Code. Pursuant to the provisions

of Section 100.070 of the Washoe County

A48

Code, the building official cannot issue a

building permit without finding that the

work described in an application for a

permit, and the plans, specifications and

other data filed therewith conforms not

only to the requirements of the building

code but to other pertinent laws and

ordinances. Said section clearly provides

that the building official may have such

plans reviewed by other departments to

ensure compliance with any applicable laws

under their jurisdiction. The building

official's reliance on the guidance of

such other departments is clearly reason-

able. In fact, to have referred the matter

to the Washoe County District Health

Department for its review and then to

ignore its conclusion that the application

does not conform to laws, ordinances and

regulations under its jurisdiction would

clearly have been arbitrary and capricous.

There are administrative remedies

A49

available to Petitioner, both with respect

to the Nevada Division of Environmental

Protection and to the Washoe County

District Health Department. Should

Petitioner be unable to satisfactorily

address his concerns through appropriate

administrative review of the conclu-

Sions of the State Division of Environ-

mental Protection and the Washoe County

District Health Department, then judicial

relief therefrom should properly be sought

against the appropriate entity, not the

Washoe County Building Department.

CONCLUSION

In accordance with the above, it is

respectfully submitted that the Petition-

er's Petition should be dismissed with

prejudice and the Alternative Writ of

Mandamus granted herein should be dis-

charged.

DATED this 25th day of January, 1990.

ASO

MILLS LANE

Washoe County District Attorney

RUSSELL S. NASH, JR.

Deputy District Attorney

P.O.Box 11130

Reno, Nevada 89520

ATTORNEY FOR RESPONDENT

AFFIDAVIT

STATE OF NEVADA )

COUNTY OF WASHOE ) ™

ORIS CORBRIDGE, being duly sworn

under penalty of perjury, deposes and

says:

1. I am the Chief Building Inspec-

tor of the Building and Safety Division of

the Washoe County Department of Public

Works.

2. Mr. Bator's application for a

building permit for farm structures on his

forty-acre parcel of property has been

considered by this Division and has been

processed as would any other application

A51

for a building permit.

3. In accordance therewith, said

plans have been forwarded to the Washoe

County District Health Department for its

review in accordance with normal building

permit application procedures under the

Uniform Building Code as adopted by Washoe

County. (Chapter 100 of the Washoe County

Code).

4. As noted by the letter from the

Washoe County District Health Department

to Petitioner dated October 25, 1989, a

copy of which is attached hereto as

Exhibit "A", the Washoe County District

Health Department has thus far not

approved Mr. Bator's plans as said plans

are incomplete as submitted.

5. As noted by the letter from the

Nevada Division of Environmental Protec-

tion to Petitioner dated July 17, 1989, a

copy of which is attached hereto as

Exhibit "B", Petitioner was long ago

A52

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advised by the State of its requirement

that he obtain a discharge permit for the

proposed alligator rearing facility

and that construction of any treatment

works could not be initiated without the

issuance of such a discharge permit and

approval of plans and specifications

therefor.

6. As noted by the subsequent

letter from Petitioner to the Nevada

Department of Environmental Protection, a

copy of which is attached as Exhibit "C",

it is obvious that Petitioner feels that

the Nevada Division of Environmental

Protection has no jurisdiction over him or

his proposed alligator rearing facility;

and in spite of language therein suggest-

ing the payment by petitioner under

protest of a fee for a discharge permit,

Affiant has been informed that to date

Petitioner has neither applied for nor

been issued the discharge permit required

A53

. =

ctr ceretlins

by the Nevada Division of Environmental

Protection.

7. Until the concerns of the Washoe

County District Health Department and the

Nevada Division of Environmental Protec-

tion are addressed and the plans are

approved by said Department, this office

cannot issue a building permit to Mr.

Bator for his farm structures.

DATED this 25th day of January, 1990

ORIS CORBRIDGE

Subscribed and sworn to before me

this 25th day of January, 1990

NOTARY PUBLIC

A54

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7: -_

EXHIBIT "A"

DISTRICT HEALTH DEPARTMENT

October 25, 1989

Anthony J. Bator

1605 Ambassador Drive

Reno, Nevada 89523

RE: Building permit Plan Review for an

Alligator Rearing Facility

Dear Mr. Bator:

This department has the authority under

Federal, State and local regulations to

review and approve developments in terms

of solid waste, waste water disposal,

water supply and water quality, air

pollution and odor controls, vector

control, as well as other environmental

concerns.

The plans submitted are incomplete and do

not contain adequate information fora

proper review. In an attempt to expedite

this project, staff has contacted a number

of experts who have provided information

A55

é p - «

. ‘

: [

‘

;

—

that allowed some additional review of the

reference project.

The referenced project has changed

somewhat since the original proposal in

April of this year. Based upon conversa-

tions with these experts, correspondence,

and the incomplete plans submitted

on October 23,1989, the following isa

summary of the proposed operations:

1. The proposed alligator rearing

facility will handle 1,000 to 2,000

alligators in a series of round concrete

tanks with domed roofs.

2. The water source for the

proposed operation are two wells on the

property. the wells are to supply water

for filling and washing down the alligator

tanks and for domestic water for the

proposed house. The alligator tanks are

proposed to be heated with the geothermal

well on site. No plan has been submitted

on the heating system. The applicant has

A56

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not submitted proof of water rights with

the construction permit application

or a geothermal disposal plan.

3. The proposed alligator food is

to be fish, chicken, horse or beef. A five

to six foot alligator will eat between

three (3) and four (4) pounds of meat

daily. With 1,000 to 2,000 alligators on

site, an operation plan must be developed

for hauling, storing and handling a large

quantity of meat without posing a nuisance

or health hazard. No information on this

phase of the operation has been submitted.

4. The alligator tanks are proposed

to be drained once daily into two (2)

settling ponds. The ponds are proposed to

be operated under anaerobic condition.

Anaerobic lagoon, with or without primary

settling, have a high potential for severe

odor problems. No lining is specified for

the settling ponds. The soils in the area

have fast percolation rates. Any leakage

A57

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from the lagoons will have a high poten-

tial of ground water pollution. The tank

discharge will be comprised of water,

alligator excrement, urine and alligator

food residue.

Section 120.005 of the Washoe County

District Board of Health Regulations

Governing Sewage, Waste water and Sanita-

tion states that all sewage, grey water

and waste water manaSement methods not

specifically authorized by these regula-

tions must be approved by the District

Health Department.

As states above, the referenced plans are

incomplete as submitted and therefore

cannot be approved at this time. Before

the District Health Department can

complete our review of the proposed

facilities, the following items must be

submitted to this office:

1. A discharge permit from the

State Division of Environmental Protection

A58

is required and must be obtained before

the District Health Department will

approve any administrative permits for the

proposed facility.

2. A complete operation plan

addressing the above items. The operation

plan must include:

a. The alligator food hauling,

stora”e, and handling facilities.

b. The liquid waste quality and

discharge rates for each phase of the

operation.

c. A solid waste and/or. sludge

disposal plan including water balance and

nutrient loading versus plant uptake

calculations.

3. The construction plans must

incorporate the above information into the

design of the facilities.

4. The construction plans must be

submitted to the State Division of

Environmental Protection.

A59

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foe eee

If there are any questions, please contact

me at 328-2430

Sincerely

Douglas L. Coulter

Environmental Engineer

Environmental Health Services

DLC: Sw

cc:

Carl Cahill

Jim Begbie

L.H.Dodgion, DEP

Al Porta, DEP

Wendell McCurry, DEP

Julian Balowski, DEP

Brent Carithers, Building Dept.

Rusty Nash, District Attorney's Office

District Judge Roy Torvinen

A60

EXHIBIT "B"

Department of Environmental Protection

July 17,1989

Anthony J. Bator Jr.

1605 Ambassador Dr.

Reno, Nevada 89523

RE: Alligator Rearing Facility, Palomino

Valley

Dear Mr. Bator:

After further discussion with

several persons in this office, it has

been decided a discharge permit for the

proposed facility is required.

Flow volumes of diluted effluent to

be directed to the irrigation site

surrounding this project will be large

enough to warrant permit issuance. It is

not known at this time what concentrations

of pollutants will be contained in this

blended reuse water.

After discussion with Dr. Cardiac

of the University of Florida in Gains-

A61

ville, it was learned that approximately

450 lbs of solids (dry weight) per day

could be generated at the proposed

site and that the domes used for rearing

are normally washed down daily after

emptying. Flows to any treatment works

will more likely be over 5000 gallons per

day and probably will approach 10,000

gallons per day if this maintenance

frequency is to continue. The amount of

solids generated induces a concern over

proper treatment and odor generation. Dr.

Cardiac also indicated that facilities in

the southern states which have septic

tanks up gradient of the polishing ponds

have less odor problems than sites which

only use polishing ponds. Solids removal

will be necessary on periodic basis with

any system which is proposed. The organic

loading of polishing pond is not known.

The dilution of the effluent may differ

throughout the year depending on irriga-

A62

tion demand and disposal conditions.

I forwarded you an application for

a groundwater discharge permit and a fee

schedule last week. The application is to

be filled out and submitted with a $200.00

processing fee if the proposal is still to

be carried out. The permit process will

take at least 60 days to complete.

Construction of any treatment works can

not be initiated without the issuance of a

discharge permit and approval of plans and

specifications.

Do not hesitate to contact me with

any questions at (702) 885-4670.

Sincerely

Julian P. Bielawski, P.E.

Environmental Engineer

Water Quality Section

JPB/srb:6

Enclosure

cc: L.H. Dodgion

Al Porta

Wendell McCurry

Doug Colter

A63

EXHIBIT "Cc"

Anthony J. Bator Jr.

1605 Ambassador Dr.

Reno, Nevada 89523

(702) 747-3964

Julian Bielawski

Wendall McCurry

Department of Environmental Protection

201 South Fall Street

Carson City, Nevada 89710

RE: Description of Alligator Rearing

Facilities, Palomino Valley

Dear Mr. Bielawski and Mr. McCurry,

After our conversations over the phone

the past several days and having read the

Statutes governing the operations of a

facility requiring a EPA discharge permit

I have come to a firm conclusion that I am

not a person required to have one.

I have submitted to you an plan of

operation as a courtesy to both you and

your agency in an attempt to display that

I am not so required. I am involved ina

agricultural business which is done as a

matter of right and accept the responsi-

bility of a freeman, that I am responsible

A64

for damages done to other freemen. I am

not discharging any materials to a public

water way nor upon anybody else's proper-

ty. It appears to me that this was the

intent of these statutes. As to whether I

would be dumping foreign matter into the

ground water supply this is highly

unlikely as the static water table is 78

foot deep andthe ground in this area is

quite dry. As far as treating my operation

unlike any other agricultural endeavor I

feel that I have been selected for

inspection and regulation without regard

for my rights to an occupation of common

right in amanner which has the adminis-

trative branch of government writing law, .

administering it, and acting as the

judiciary in denying me my rights.

There seems to be some misunderstand-

ing as to what information has circulated

about what I will be doing. As a matter of

record I state that the figures which have

A65

been provided were accurate in a worst

case situation. In the letter written to

me on July 17, 1989 over the signature of

Mr. Bielawski the amounts and quantities

of water and waste were mistakenly

amplified to figures which would put my

operation in your jurisdiction. ~ An error

which may have evolved from a conversation

your agent may have had with a researcher

in Florida. Since the time of my providing

your office with that name I have since

provided you with the name of the presi-

dent of the Florida Alligator Farmers

Association. He will provide you with the

name of the agencies in Florida which

administer water protection (keeping in

mind that most of the operations in

Florida are located on the ground water

table in swamps) and Health.

As far as my paying this fee and becoming

a permitted operation I object and pay

this money in protest as my building

A66

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permits will be denied along as you insist

and inform the Washoe County Health

department that I come within your

jurisdiction.

Due to this inability to obtain building

permits because of your insistence that I

obtain a discharge permit I am paying this.

fee. My economic survival depends upon my

getting a crop started this year.

I have referenced certain documents in

this letter. I have included copies of

them for your review. I request that

you make all haste in your issuance of

this unnecessary permit as I have to build

ten buildings before October. For the

co-operation I seem to be receiving in you

willingness to get this permit issued ina

hurry I thank you.

Sincerely;

Anthony J. Bator Jr.

cc: L.H. Dodgion

Al Porta

Wendell McCurry

Doug Coulter

Bart Hooley

A67

JUDGEMENT DEPARTMENT 6 CV89-7653

DATED FEBRUARY 7, 1990

IN THE SECOND JUDICIAL DISTRICT COURT OF

THE STATE OF NEVADA IN AND FOR THE COUNTY

OF WASHOE

ANTHONY J. BATOR UR.,

Petitioner, JUDGEMENT

Vs.

WASHOE COUNTY BUILDING DEPT.,

Respondent,

WASHOE COUNTY

Real Party in Interest

This matter having come on regular-

ly for hearing on January 25, 1990,

Petitioner, Anthony W's Bator, wiles

appearing in proper person and Russell S.

Nash, Jr., Deputy Washoe County District

Attorney, appearing as counsel for the

Respondents, and the Court having reviewed

the Petitioner's Points and Authorities in

support of his Application for Writ of

Mandamus and the Respondents' Points and

A68

Authorities in opposition thereto, and

having heard the oral arguments of

Petitioner and Counsel and being fully

advised in the premises, the Court finds

the following facts and states the

following conclusions of law:

The purpose of the mandamus

provisions of our law is to provide an

extraordinary remedy under circumstances

in which it is clear that the remedy is

warranted. The writ of mandamus should be

resorted to only when the usual and

ordinary remedies fail to afford adequate

relief and where, otherwise, there would

be a failure of justice. Mandamus will not

apply unless a clear legal right to the

remedy is shown.

The burden of establishing a right

to the remedy is imposed by law upon the

Petitioner. The availability of an

alternate remedy or the failure to

demonstrate the clear right to the

A69

2 : = a Sn > ——

a — oe ee ~_ _—s es _—— = ; eS ee

mandamus compels denial of the writ.

The Uniform Building Code of 1985,

as adopted by reference through the Washoe

County Code, Section 100.010, plainly

authorizes the Building Department and the

appropriate "building official" in that

department to have plans pursuant toa

building permit application reviewed by

other departments, as appropriate,

to determine if they conform with the

requirements not only of the Washoe County

Code and the Uniform Building Code, but

other pertinent laws and ordinances. In

this case, the Washoe County Health

District was requested by the Building

Department to review Petitioner's plans.

In addition, certain matters under

the jurisdiction of the State Division of

Environmental Protection were referred to

that division for review.

Petitioner has not demonstrated, by

clear and convincing evidence, that the

A70

State Division of Environmental Protection

and the Washoe County Health District are

without jurisdiction to conduct this

review.

The Washoe County District Health

Department has jurisdiction under NRS

439.410 to conduct a review consistent

with its obligation and authority as to

public health matters in this ccunty.

The Court does not agree with the

Petitioner's analysis that because a

project proposed in a building permit

application may not constitute a public

nuisance as defined in NRS 202.450,

it therefore follows that the Health

District and the State Division of

Environmental Protection are without

jurisdiction to conduct a review.

THEREFORE, IT IS HEREBY ORDERED AND

ADJUDGED:

Ae That the Peremptory Writ of

Mandamus applied for is herein denied;

A71

a essss—ts

2. That the Alternative Writ of

Mandamus granted herein is discharged.

DATED this 7th day of February,

1990.

District Judge

A72

MOTION TO PROCEED WITHOUT AN ATTORNEY

DATED: March 13, 1990

CASE NO. 20862

IN THE SUPREME COURT OF THE STATE OF

NEVADA

ANTHONY J. BATOR

Petitioner - Appellant

— i

Ve ) MOTION TO

) PROCEED

) WITHOUT

JAN ATTORNEY

WASHOE COUNTY BUILDING DEPT. )

Respondent - Appellee

WASHOE COUNTY

)

Real Party in Interest )

COMES NOW Appellant, Petition-

er, Anthony J. Bator, and hereby moves,

pursuant to rule 46(b) of the Nevada Rules

of Appellate procedure, SEBE petitioner's

appeal be accepted in proper person.

Dated this 13 day of March, 1990.

Anthony J. Bator

Pro se

1605 Ambassador Dr.

Reno, Nevada 89523

(702)747-3964

A73

BRIEF FOR THE APPELLANT

DATED: MARCH 13,1990

IN THE SUPREME COURT OF THE STATE OF

NEVADA

CASE NO. 20862

ANTHONY J. BATOR

Petitioner-Appellant

Vv. e

WASHOE COUNTY BUILDING DEPARTMENT

Respondent-Appellee

WASHOE COUNTY

Real Party in Interest

On appeal from the Second Judicial

District Court of the State of Nevada

in and for the County of Washoe

BRIEF FOR THE APPELLANT

ANTHONY J. BATOR

Appellant, Pro se

1605 Ambassador Dr.

Reno, Nevada 89523

(702) 747-3964

A74

TABLE OF CONTENTS

Subject Page

Table of Contents i

Table of Authorities ii

Statement of the Issues 1

Statement of the Case

Argument 1 5

Argument 2 16

Conclusion and Relief Sought 20

A75

TABLE OF AUTHORITIES

TITLE PAGE

4 a by. ene e ee are 8

MEMORANDUM OF CONDITIONS STATED

BY BOARD OF ADJUSTMENT........... 18

SS SSS c Ol kk < 6 64444004 CSO O 8S ERED 6

we 2 | a gs . Se ee eer ee 13

ae) OR aera er ere ee 9

RE RS er ee ee ee ee Se 9

Be, rrr eee ee rr 9

| ee rr a 9

NRS 445.131-445.354... errr ee er eee 10

a GY er ere re ee 12

ie Ses Bs 664 0600004 s eee 12

a ee ere re re ree ee 11

I ae eee ee Tere ree Te 7

- 2. i 5 ewer ee ee es 12

MERE CHAPE ee S475 76. ccncesecesesees 9

STATEMENT OF NEVADA HANDBOOK

OF BEST MANAGEMENT PRACTICES..... 8

U.S. DEPT. OF AGRICULTURE

WATER QUALITY INDICATORS GUIDE...8

UsS. Pebse BS"SOG. cccncceccescesesses 6

U.S. P.L. 92-500 SECTION 208........ 6

U.S. P.L. 95-217, AMENDS P.L.

92-500 INC. SEC. 208... cc cccccces 6

WASHOE COUNTY CODE CHAP.100

SECT. 303(A).......

WASHOE COUNTY PLAN 208

A77

CR-1

CR-8

CR-9

CR-10

CR-11

CR-12

CR-13

CR-14

CR-15

PETITION FOR WRIT OF MANDAMUS

(WITH EXHIBITS A,B,C AND D

ATTACHED)

AFFIDAVIT

ORDER DIRECTING ISSUANCE OF

ALTERNATE WRIT

ALTERNATE WRIT OF MANDATE

AFFIDAVIT OF SERVICE

ANSWER

MEMORANDUM OF POINTS AND AUTHOR-

ITIES IN OPPOSITION TO PETITIONER'S

APPLICATION FOR WRIT OF MANDAMUS

TRANSCRIPT OF COURT OPINION HELD

JANUARY 25,1990

JUDGEMENT

NOTICE OF ENTRY OF JUDGEMENT

NOTICE OF APPEAL

DESIGNATION OF RECORD OF APPEAL

PROOF OF SERVICE

PLAINTIFF'S EXHIBIT # 1

PLAINTIFF'S EXHIBIT # 2

A78

—.-

P eo

7 _

; eae Sy as

i ; * 7 ;

f ; ~7 :

sp ibgiteigy

iii

TABLE OF AUTHORITIES

TITLE ORIGINAL CITATION PAGE

CVE9—47G0. cccccesdsse Court Record 8 p. 12

MEMORANDUM OF CONDITIONS STATED BY

BOARD OF ADJUSTMENT.........006- CR-14

MAC 465. O71 2s cecewcccvcesee CR-1, CR-8 p.41

MAC 445.076. ccc icesecicc CR-1, CR-& p.41

MRE 202. 450 ccc cicvescevsrcosevess CR-8 p.16

BRE GdD. 2IOec cccccvreseseusvasdus CR-8 p.15

BERS: £I9 410 coc cece tectcsecsiuss CR-8 p.37

MRE. 466.650. cicccccuneccvedewvecee CR-8 p.42

NRS 445.131-445.354....... CR-1, CR-8 p.42

MRS 645.247 cc cccccosecces CR-1, CR-8 p.42

RE OES. L1G cccccccscvscece tees CR-8 P.42

NRS Oe er CR-1, CR-8 p.42

I Os ik acca wks CR-1, CR-8 p.42

RE 605. 2522 cv ivaccwwccsess CR-1, CR-8 p.42

BRS CHAPTERS 567376. ccccccccces CR-8 p.16

STATE OF NEVADA HANDBOOK OF BEST MANAGE-

MENT PRACTICES... ccccccccscre CR-8 p.39

U.S. DEPT. OF AGRICULTURE WATER

QUALITY INDICATORS GUIDE......... CR-15

US. Bebe B2-SOO. cesancccsccovccvscrves CR-1

ats 9 " sac =

os <_<

a SS a Se -_

U.S. P.L. 92-500 SECTION 208

oeeeee oeoeeeeeveeeere CR-1, CR-8 p.44

U.S. P.L. 95-217, AMENDS P.L. 92-500

TNC. SEC.208................. CR-8 p.46

WASHOE COUNTY CODE CHAP.100

De PEED eee wees ese ccc ccccccece CR-1

WASHOE COUNTY PLAN 208.......... CR-8 p.44

A80

——

STATEMENT OF THE ISSUES

Washoe County, the REAL PARTY IN INTEREST,

in this case has attempted to compel

petitioner through a maze of administra-

tive agencies and hearings to pursue his

chosen occupation; a farmer. Bator, after

spending 11 months trying to _ show the

county that what it is attempting to

compel him to do is something which is

not necessary, and in fact, against the

law; petitioned the court to compel the

Washoe County Building Department to issue

his building permits. Bator is in compl-

iance with all pertinent laws.

The county is attempting to compel

Petitioner;

1) To acquire ea Discharge Permit

under the National Pollution Discharge

Elimination System permits program.

2) to accept the fact that he will

be a public nuisance.

3) to accept that he is a "treat-

A81

ment works" defined as a municipal sewage

treatment facility.

4) to prove that he has. not stolen

water rights.

The county claims that it is within

the jurisdiction of the District Health

Department to require these things. Peti-

tioner demonstrates by law that it is not.

A82

a cus =

—

— <i 7

STATEMENT OF THE CASE

This Writ of Mandate arose as a

result of petitioner, Bator, and his

inability to acquire building permits to

construct 10, 30 foot diameter buildings

out of concrete, block, and steel.

Petitioner, Bator appeared before the

county board of adjustment on May 4, 1989

and presented his position that he did

not require any type of special use

permit, any type of discharge permit or

any type of zone change to conduct his

agricultural activity on his agricultur-

ally zoned property. The board of

adjustment found against him requiring

him to have a special use permit with

conditions of operation. Petitioner,

Bator proceeded to court to have the

court determine if a special use permit.

was required. The special use permit

itself being the only regulation compel-

ling petitioner, Bator, — need fora

A83

discharge permit as well as sumission of

an extensively prepared plan of operation

to the district health department. In

case number CV89-4760 heard in Department

4 Washoe County District Court, the court

found no special use permit was required

because no statute, law or ordinance

required one. The court also found that

Petitioner, Bator was an agricultural

user of the land and if Petitioner was in

compliance with Washoe Building Codes

permits should issue. County failed to

appeal. The county failed tc issue

building permits. Bator places motion

before court to use its powers to

enforce its order. Respondent, Washoe

County Building Department then contended

Bator was not in compliance with the

Washoe County Building Code. An order

ensued stating that this was a new cause

of action. Petiticner, Bator then filed a

new Petition for a Writ of Mandamus

A84

a i oo ines oe

CV89-7653 seeking the court to cenpel the

issuance of Bator's building permits

claiming it is the responsibility of the

head of the Washoe County Building

Department to know the specific jurisdic-

tion of other Washoe County agencies. The

health departments claim that Petitioner,

Bator, is building a treatment works

under Chapter 445 of the Nevada Revised

Statues in unfounded and outside of

Health Departments Jurisdiction. Despite

the District courts ruling that Bator is

an agricultural user of the land Building

Department continues to accept the health

departments off point couatention that

Bator is building a treatment works.

Under federal, state and local lawa

treatment works is defined as a federally

financed municipal sewage treatment

facility. Said laws require plans for

such a facility to be submitted to the

state Department of Environmental

A85

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a - ' . a = 7 he ae _

ce oe ee

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ba = ’ : Oe a : Cee : . ” 7 me fhe:

he : one

Protection, application and approval of a

discharge permit to surface waters

through a public forum, as wel! as submit

to regulation by an empowered govern-

mental agency to control what material is

processed through said facility. Washoe

County District Health Department Claims

to be this agency. As a result of

Building Department failure to verify

health departments jurisdiction and

allegation Bators building permits have

not been issued. Judge Adams denies the

petition for an issuance of petitioner's

building permits.

ARGUMENT I

Bator, Petitioner and Appellant owns

approximately 41 acres of property in

Warm Springs Canyon; the southwest corner

of the south west corner of township 22

range 20 east section 26 Mount Diablo

Meridian. On this property Bator has

plans to raise alligators for meat and

A86

hide. His plans include the building of

10 concrete and block buildings to

contain approximately 2000 alligators

under maximum operating conditions. These

buildings are 30 foot in diameter

approximately 10 feet tall in the center

and enclosed with a wooden roof. Com-

pletely secure and completely fenced. In

these buildings Bator will have ponds

which will hold approximately 467 gallons

of water. This water will be drained from

these buildings not more than once a day.

The water will the be stored in a holding

pond “for use in raising crops. It

will» be applied to 20 acres of land

presently being prepared for cultivation.

this 467 gallons of water per day will

contain fecal matter from these ten

buildings. This water will then be

used to irrigate and fertilize crops. NO

EXIT WATER WILL EVER LEAVE BATORS

PROPERTY. This is a common agricultural

A87

practice. The rate of ‘application of

manure under maximum operating conditions

will be 7 tons per acre per year. Common

rates of application of manure in the

agricultural community are as high

as 25 tons per acre which is neccessary

to return nutrients and equivalent mass.

Significantly more water than this 4670

gallons per day will be required to raise

a crop. This will be done from the water

rights which have already been moved to

the point of diversion on Bators property

by the state water engineer. No surface

water is on or near Bators Property. In

fact Bators property is over 10 miles

from any surface water.

Under Article 1 section 8

clause 3 of the United States Constitu-

tion, the commerce clause, the federal

government claims jurisdiction over the

navigable waters, as highways, of

the United States. As a result of the

A88&

degenerating quality of the nations

waterways the federal government in 1972

enacted Public Law 92-500, The water

Pollution Centrol Act of 1972. This act

was amended in 1977 by P.L. 95-217,

popularly known as the Clean water Act.

To enlist the states in enforcement of

these statues the U.S.Government granted

revenues to the individual states if

they were in compliance with, and

enforced these statutes (see NAC

445.071). In this act section 208(a)(2)

states;

"The Governor of State, within

sixty days after publication of

this subsection, shall identify

each area within the State which,

as a result of urban-industrial

concentrations or other factors,

has substantial water quality

control problems. Not later than

one hundred and twenty days

following such identification and

after consultation with the

appropriate elected and other

officials of local governments

having jurisdiction in such areas,

the Governor shall designate (A)

the boundaries of each such area,

and (B) a single representative

organization, including elected

officials from local governments or

A89

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i (

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ss . = 7 - 7 . - —,

en a a ee aS =o. : 7" i

f a ise eas a ae _™= > : : a 4 a or =

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woe

their designees, capable of

developing effective area wide

waste treatment management plans

for such area. The Governo: may in

the same manner at any later time

identify any additional area (or

modify an existing area) for which

he determines area wide waste

treatment management to be appro-

priate, designate the boundries

of such area, and designate an

organization capable of developing

effective area wide waste treatment

management plans for such area.

Further in this act in Section 208(b)2(F)

"a process to (i) identify, if

appropriate, agriculturally and

Silviculturally related non-point

sources of pollution, return flows

from irrigated agriculture, and

their cumulative effects, including

runoff from manure disposal areas,

and from land used for livestock

and crop production, and (ii) set

forth procedures and methods

(including land use requirements)

to control to the extent feasible

such sources:"

Pollution only within an area defined

under section 208 (a) (2).

In Section 502 General provisions

for the carrying out of this federal act

states sec. 502(14)

“ The term ‘point source’

means any discernable,

confined and discrete convey-

A90

: : .

Al oo 7 <3." : wey

aan —— ian

a _— a

[uo ae

ra — au See 7

ance, including but not

limited to any ditch, channel,

tunnel, conduit, well,

discrete fissure, container,

rolling stock, concentrated

animal feeding operation or

vessel or other floating craft

from which pollutants are or

may be discharged. This term

does not include return flows

from irrigated agriculture."

Discharged to the jurisdictional

limits of the Act; the navigable surface

waters of the United States in those areas

designated by section 208 (a) (2). (See

NRS 445.253). Those areas identified by

the Administrative branch of government

were compiled in the Washoe County 208

Water Quality Management Plan, compiled by

the Washoe Council of Governments Depart-

ment of Regional Planning. On page III-20

is a map of the Truckee River Basin. It is

identified as that portion of Washoe

county to which this act applies ina

letter from the United States Environmen-

tal Agency Dated November 6, 1978 and

included in appendix B of the Washoe

A91

county Plan. Bator's Property LIES OUTSIDE

the Truckee River Basin. If Bators

property were inside one of these desig-

nated areas the agency designated to

administer this body of law would have to

submit to Bator a plan of operation from

the STATE OF NEVADA HANDBOOK OF BEST

MANAGEMENT PRACTICES. If Bator refused

to comply with these practices and some

type of pollution of surface water ensued

said agency would have the right to seek

injunctive relief as stated in the state

publication REGULATIONS FOR CONTROL OF

WATER POLLUTION FROM DIFFUSE SOURCES

petitioners exhibit "D". Establishing

pollution existed would be done through

methods described in WATER QUALITY

INDICATORS GUIDE: SURFACE WATERS peti-

tioners Exhibit "2".

Section 402 of the Water Pollution

Control Act establishes the "NATIONAL

POLLUTANT DISCHARGE ELIMINATION SYSTEM"

A92

the said permits County Health insists

Bator Obtain. In Section 402(1)

"The Administrator shall not

require a permit under this section

for discharges composed entirely of

return flows from agriculture, nor

shall the Administrator directly or

indirectly, require any State to

require such a permit."

Clearly the law states again that

Bator is not required to acquire the

demanded permit.

In case no. CV89-4760 The

Washoe County District Court found

that petitioner was an agricultural user

of the land. The respondent in that action

was the Washoe County Building Department,

with Washoe County being the Real Party In

Interest, who were represented by Rusty

Nash of the Washoe County District

Attorney's office, Civil Division. It was

not appealed.

Washoe County in its MEMORAN-

DUM OF POINTS AND AUTHORITIES IN OPPOSI-

TION TO PETITIONER'S APPLICATION FOR WRIT

A93

OF MANDAMUS contends that under NRS

439.410 the Health Department has juris-

diction to

(a) Prevent and control nuisances.

(b) Regulate sanitation and

Sanitary practices in the

interests of the public health

protection of water and food

supplies; and

(d) Protect and promote the public

health generally in the geographi-

cal area subject of the health

district.

In response to (a) and (b) Chapter

202 CRIMES AGAINST PUBLIC HEALTH AND

SAFETY section 202.450 (4) States:

"Agricultural activity conducted on

farmland consistent with good

agricultural practice and estab-

lished before surrounding nonagri-

cultural activities is not a public

nuisance unless it has a substan-

tial adverse effect on the public

health or safety. It is presumed

that an agricultural activity which

does not violate a federal, state

or local law, ordinance or regula-

tion constitutes good agricul-

tural practice."

This places agriculture outside of

the jurisdiction of the District Health

Department. Chapters 547-576 of the Nevada

A94

Revised Statues establishes the state

Department of Agriculture and constitute a

body of law dealing with agriculture. This

is amongst the clearly established law

that has Bator seeking a Writ of Mandate.

In response to section (c) District

Health Department has formulated a set of

regulation to provide for sanitation and

sewage. These regulations are written

pursuant to chapters 439.370 and chapter

444.650. Section 439.10 establishes the

Health Departments powers and jurisdiction

as stated in a,b,c,d above. Chapter 444

Deals with sanitation. Section 444.650

States:

"Regulations to control use of

individual systems."

1. The state board of health shall

adopt regulations to control the

use of an individual system for

disposal of sewage in this state.

Those regulations are effective

except in health districts in which

a district health has adopted

regulations to control the use of

an individual system for disposal

of sewage in that district.

Ze A board which adopts’ such

regulations shall consider and take

A95

into account the geological and

topographical characteristics of

the area within its jurisdiction.

3.The regulations adopted pursuant

to this section must not conflict

with the provisions of NRS 445.131

to NRS 445.354, inclusive, and any

regulations adopted pursuant to

those provisions.

The county health department

is well within its jurisdiction when it

checked and approved Bator individual

septic system attached to the home he

intends to build at this location. This

has been done.

Regarding NRS Chapter 445

WATER CONTROL;AIR POLLUTION, this is the

body of law administer by the State

Environmental Commission. It is under

their jurisdiction that these laws are en-

forced; Not Washoe County or the Washoe

County District Health Department. In the

Memorandum of points and authorities

submitted to the district court County

Council States on page 3 iine 7;

"the construction of any treatment

works cannot be initiated without

A96

_—

approval of plans and specifica-

tions thereof."

Petitioner agrees but points out he

is not a treatment works. "Treatment

works" as defined in the NRS Chapter

445.186

""Treatment works" means:

1.Any devices and systems used in

the storage, treatment, recycling

and reclamation of municipal sewage

or industrial wastes of a liquid

nature, including intercepting

sewers, outfall sewers, sewage

collection systems, pumping and

other equipment and their appurt-

enances;

2.Extensions, improvements,

remodeling, additions and altera-

tions of any device of system

mentioned in subsection l.

3.Units essential to provide a

reliable recycled supply such as

stand-by treatment units and clear

well facilities.

4.Any works, including site

acquisition of the land that will

be an integral part of the treat-

ment process or is used for

ultimate disposal of residues from

such treatment; and

5.Any other Method of system for

preventing, abating, reducing,

storing, treating,separating of

disposing of municipal waste,

including storm water runoff,

industrial waste or waste combined

storm water and sanitary sewer

systems.

A97

Clearly Bator does not fit

into this category. If this law were not

enacted by the Nevada Legislature, Nevada

would be in violation with The Water

Pollution Control Act of 1972 and would

and would not be eligible to receive

federal funds to construct the facilities

described in 445.186. The Portion of those

funds supplied by the federal government

can range up to 85% of construction

costs. As a result of this federal funding

the Nevada Environmental Commission can

regulate what is processed through

these facilities as stated on the WPCA.

Having established earlier

that Bator facility was neither point

source nor a non-point source under the

designation of effected areas, Bator feels

compelled to establish the intent of

the law to avoid confusing the court and

clearly establish that the District Health

Department is operating outside of its

A98

jurisdiction. NRS 445.147 states;

"Diffuse Source" defined. "Diffuse

source" means any source of water

pollution which is diffused to the

extent that it is not readily

discernible and cannot be confined

to a discrete conveyance. This term

is intended to be equivalent to the

term "non-point source as used in

federal statutes and regulations.

NRS 445.176 States:

"Point source" defined. "Point

Source" means any discernible,

confined and discrete conveyance,

including but not limited to any

pipe, ditch channel, tunnel,

conduit, well, discrete fissure,

“container, rolling stock, concen-

trated animal feeding operation, or

vessel or other floating craft from

which pollutants are or may be

discharged. The term does not

include return flows from agricul-

ture."

If Bator were located within the

jurisdictional control of this act he

would clearly be a diffuse source if he

were in fact discharging water intoa

river as a result of over-watering the

crops he will have in production.

The Control of "diffuse sources" is

dealt within NRS 445.2533 (2)

A99

> FP

via)

hee ne

im Hy

"The Department (environmental)

shall delegate, to each county or

city which so requests, other than

a county which NRS 244A.571 and

244A.573 apply or a city within

such a county, the administration

of the department's control of

diffuse sources, if the director

finds that the county or city has

the necessary money and staff

to administer the program effec-

tively. If such a delegation is

made both to a county an toa city

within it, the city has authority

within its corporate limits and the

county has authority outside those

limits.

This is consistent with Federal law

requiring proven expertise of the adminis-

trators of. the program to insure its

proper application. Failure to do so would

jeopardize federal grants.

a unclear whether Washoe

County has acquired this authority.

Certification to administer this program

has been requested by Bator, but never

supplied. Clearly From the letter attached

to petitioner's Petition for Writ of

Mandamus "Exhibit A" the Health Department

has never been given jurisdiction ‘to

A100

Administer the National Pollution Dis-

charge Elimination System permits program.

Their lack of familiarity with the

REGULATIONS FOR CONTROL OF WATER POLLUTION

FROM DIFFUSE SOURCES, petitioners exhibit

"D", would indicate they have not applied

for and been granted this authority.

Petitioner's Exhibit "2" is a publication

put out by the U.S. Department of Agri-

culture Demonstrating the techniques to

use, consistent with state regulations, to

determine water pollution from non-point

or diffuse sources.

The final Claim presented by the

County Council that Bator's facility is an

aqua-cultural facility must be refuted.

Under the NAC Chapter 445.074 Aqua-cul-

tural facilities are defined;

"Aquatic animal production

facility" defined. "Aquatic

animal production facility" means a

hatchery, fish farm or other

facility which contains, grows or

holds:

1.Fisn or other aquatic animals in

ponds, raceways or other similar

A101

structures for purposes of produc-

tion and from which there isa

discharge on any 30 days or more

per year, but does not include:

(a)Closed ponds which discharge

only during periods of excess

runoff; or

(b)Facilities which produce less

than 20,000 pounds of aquatic

animals per year.

2.Any Species of fish or other

animal life (other than carp (

Cyprinum carpio ), goldfish (Carra-

Sius auratus) or brown trout (Salmo

Trutta)) non-native to the United

States as defined in "Special

Publication No. 6" of the American

Fisheries Society entitled "A List

of Common and Scientific Names of

Fishes from the United States and

Canada" and from which there is a

discharge at any time.

Clearly Bator is not required under

this statue to acquire a discharge permit

either as he will never have any dis-

charge.

To clarify why a fish hatchery

would need a discharge permit it is

important to understand how they operate.

Fish require massive amounts of water for

their gill to work. This massive amount of

water is pumped most commonly from a well

in Nevada, but in other states taken from

A102

i ie i eo a a

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= ce

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Se —yow

- = u +

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——— — ; .

ee ee

a river, stream or creek depending

upon water quality and quantity, and run

through raceways in which the fish swim.

There is very little consumptive use prior

to discharge of this water. Most of this

water is returned to adjacent surface

waters. See State document LAND APPLICA-

TION OF WASTE WATER IN NEVADA page 123. A

publication of the State of Nevada

Department Of Conservation and Natural

Resources Division of Water Planning.

Bator's Gators have lungs and no

water will be discharged to surface water

of the state of Nevada. EVER.

Having refuted all the of Counties

contentions with the law Bator now argues

the issue of jurisdiction as described in

the Washoe county code Chapter 100.

Section 303(a) states;

"The application, plans and

specifications and other data filed

by an applicant for permit shall be

reviewed by other departments of

this jurisdictior to verify

compliance with any applicable laws

A103

a as ng se a

TO ea see

under their jurisdiction....."

Through this brief the appellant

has clearly and repeatedly demonstrated

that the Washoe County, and the Washoe

County Health Department have no jurisdic-

tion to deal with the laws they are

attempting to compel petitioner to

follow as they fall outside of their area

of expertise. The Washoe County Building

Department has a responsibility to the

Applicant to know the limits of the

authority vested in the departments of

government to which he is to submit plans

for approval. In the instance before this

court today Petitioner has repeatedly

informed the Building Official of the lack

of jurisdiction of the Washoe County

Health Department. This same building

official had a responsibility to applicant

to submit to his counsel Bator's allega-

tions. it is the responsibility of

Building Departments counsel to verify

A104

law; not some low level administra-

tive county employees in the persons of

Douglas Coulter and Carl Cahill and Mike

Harper.

ARGUMENT II

The second basis for review of this

case by the Nevada Supreme Court is the

lack of impartiality of Judge Brent

Adams. The Judges conduct in the court

room to the petitioner was clearly

biased. Petitioner believes it was the

responsibility of the respondent to show

why petitioners permit has been denied.

Upon submission of respondents

answer to petitioners writ and pleading in

court explaining why petitioners building

permits are being denied, petitioner

refuted the claims of respondent. Judge

Adams actions were to build the case of

the respondent until he, Judge Adams, felt

comfortable denying petitioner's Writ.

From the opening moments of the

A105

hearing the Judge lead the respondent and

badgered the petitioner (see Page 25 line

17,18, and page 48 line 8). The answer

submitted by the District Attorney's

office to the petitioner was late as noted

on the stamp of the clerk of the court as

well as grossly inaccurate. Petitioner

feeling secure in his ability to refute

any argument the D.A. could present did

not then nor now object. It did however

contain misstatements of fact. Petitioner

had clearly been before the County Board

of Adjustment the minutes were presented

as "exhibit 1".

Regarding comments made about the

health department and verification of

water rights respondents "exhibit A" if

Judge Adams believes that it is within the

authority of the District Health depart-

ment to verify water rights as he so

indicated in the hearing he obviously does

not understand the manner in which our

A106

government is organized. We do have a

State Water Engineer. This is his respon-

sibility. If Bator were to violate the

water laws of the state of Nevada it would

be up to the state to charge him with a

crime.

If Judge Adams believes it is

within the authority of one Doug Coulter

to negate a judicial decision and the

findings of the County Board of Adjustment

he has no business sitting on the’ Bench.

In the opening moments of this

hearing Petitioner, Bator, surmising the

partiality of Judge Adams, and his unwil-

lingness to permit him to present his case

Bator entered into the record the neces-

sary laws to have this issue decided by

this court, concededly in a very disorgan-

ized fashion . Given the obvious prejud-

icial treatment of the court I did have a

tendency to speak rather rapidly.

In the transcripts of the day the

A107

respondent brought up issues' before the

court. These issues were clearly refuted

by the Petitioner, Appellant. Judge

Adams attempted to reduce the case to an

issue of Bator not exhausting his adminis-

trative remedies. No evidence was introdu-

ced to support this contention by respon-

dent whose response to Petitioners writ

was pure -cextbook. Judge Adams completely

disregards the evidence showing Bator had

been before the board of adjustment. On

page 21 of the transcripts Judge Adams

inquires "Wouldn't your time have been

spent these last several months addressing

these issues raised in the letter instead

of litigating the question of their

authority to send the letter?" He was

attempting to return Bator to the point he

was at months ago. In the interest of

brevity and efficiency the issue was

reduced to the controversy involved, which

the Judge refused to address (page thirty

A108

six of the transcript lines 19; his

summation proceeding line 19 being a gross

misstatement of the facts (see Exhibit #1)

and my contentions in court) and simply

reflects his unwillingness to even address

an issue which might have an adverse

effect on the self appointed authority of

the bureaucrats of Washoe county.

The transcripts reflect Judge Adams

was informed Bator had supplied informati-

on to the various branches of Washoe

county government and these contentions

were neither denied nor refuted by

Respondent, who would have been committing

perjury had such an allegation been made.

The facts are that Bator spent FOUR MONTHS

on a full time basis trying to get the

people in the health department, building

department, planning department and

district attorney's office not to listen

to Doug Coulter and Mike Harper and to

look at the law. But what has the law to

A109-

do with this issue anyway? (in reference

to the attitude of the administrators of

Washoe Counties Government).

The exchanges of the Judge to the

Petitioner were abrupt and curt. He

repeatedly attempted to mis-state the case

for the Petitioner and keep him _ from

presenting his case. Though the tran-

scripts reflect this to some extent I only

wish I could have video taped Judge Adams

conduct. It would clearly establish his

lack of judicial impartiality. In dealing

with respondent, Judge Adams asked if he

was done with his presentation. He never

showed petitioner the same courtesy; in

fact, as the record show he never permit- —

ted me the opportunity to effectively

present my case.(page 53 line 14 amongst

others. )

In closing ‘I would like point out

that Judge Adams made his ruling from the

bench. After having spent months investi-

A110

gating the law so that I might understand

it, I hardly perceive it possible for

anyone to make a decision without even

examining the evidence.

STATEMENT AND PRECISE RELIEF SOUGHT

As an agricultural user of the land

using common agricultural practices Bator

has been denied the use of his land,

his property, over a year of his life, and

equal protection of the law. Having

clearly shown that Washoe county is

incorrect in denying Petitioner (appel-

lant) his building permits Bator preys

before this court to vacate the district

courts judgement and compel the Washoe

County Building Department to issue the

long overdue building permits.

DATED this 12 day of March, 1990

Anthony J. Bator

Pro se

Alll

APPENDIX TO BRIEF;IN NEVADA SUPREME COURT

DATED: FEBRUARY 13, 1990

IN THE SUPREME COURT OF THE STATE OF

NEVADA

CASE NO. 20862

ANTHONY J. BATOR JR.

Petitioner - Appellant

Vv.

WASHOE COUNTY BUILDING DEPARTMENT

Respondent - Appellee

WASHOE COUNTY

Real Party in Interest

On Appeal from the Second

Judicial District Court of

the State of Nevada in and

for the County of Washoe

BRIEF FOR THE APPELLANT, APPENDIX

ANTHONY J. BATOR JR.

Appellant, Pro se

1605 Ambassador Drive

Reno, Nevada 89523

(702) 747-3964

All2

TABLE OF CONTENTS

Docket Entries

Washoe County 208 Plan

Page IiI 20

Washoe County 208 Plan

Appendix B

Transcript - Hostility of Judge

Transcript - Ruling From Bench

Transcript - Failure to permit

presentation of Petitioners case

in a clear and concise manner

Petitioners original "Exhibit cC"

Judgement

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TABLE OF CONTENTS

Subject Where Originally Cited

Docket entries INDEX

Washoe County 208 Plan

Page III 20 CR-8 p.44

Washoe County 208 Plan

Appendix B CR-8 p.44

Transcript - Hostility of Judge CR-8 |

Transcript - Ruling from bench CR-8

Transcript - Failure to permit

presentation of petitioners case

in a clear and concise manner CR-8

Petitioners original "Exhibit Cc" CR-3

Judgement CR-9

A114

INDEX

DESCRIPTION*CV89-7653*PENCILED PAGE NUMBER

AFFIDAVIT

(Filed: Dec. 26,1989) 46 to 47

AFFIDAVIT OF SERVICE

(Filed: Jan. 04,1990) 50

ALTERNATE WRIT OF MANDATE

(Filed: Jan. 04,1990) 49

ANSWER

(Filed: Jan. 25,1990) 51

DESIGNATION OF RECORD

ON APPEAL

(Filed: Feb.08,1990) 91

JUDGEMENT

(Filed: Feb.07,1990) 81

MEMORANDUM OF POINTS

AND AUTHORITIES IN

OPPOSITION TO PETITIONER'S

APPLICATION FOR WRIT OF

MANDAMUS -

(Filed: Jan 25,1990) 56

NOTICE OF APPEAL

(Filed: Feb. 08,1990) 390

NOTICE OF ENTRY OF

JUDGEMENT

(Filed: Feb 07,1990) 84

ORDER DIRECTING ISSUANCE

OF ALTERNATE WRIT OF

MANDAMUS

(Filed: Jan 04,1990) 48

PETITION FOR A WRIT OF

MANDAMUS (WITH EXHIBITS

A,B,C AND D ATTACHED)

A115

;

]

(Filed:Dec 26,1989) i to 45

PLAINTIFF'S EXHIBIT 1

(ADMITTED JAN.25,1990)

(Filed: ) 93 te iis

PLAINTIFF'S EXHIBIT 2

(ADMITTED JAN.25,1990)

(Filed: ) 114 to 184

PROOF OF SERVICE

(Filed: Feb.08, 1990) 93 to 94

TRANSCRIPT OF COURT OPINION

HELD JANUARY 25,1990 ~

(Filed:Feb 05,1990) 77 to 80

A116

CR-1 PETITION FOR WRIT OF MANDAMUS

(WITH EXHIBITS A,B,C AND D

ATTACHED)

CR-2 AFFIDAVIT

CR-3 ORDER DIRECTING ISSUANCE OF

ALTERNATE WRIT

CR-4 ALTERNATE WRIT OF MANDATE

CR-5 AFFIDAVIT OF SERVICE

CR-6 ANSWER

CR-7 MEMORANDUM OF POINTS AND AUTHOR-

ITIES IN OPPOSITION TO PETITIONER'S

APPLICATION FOR WRIT OF MANDAMUS

CR-8 TRANSCRIPT OF COURT OPINION HELD

JANUARY 25,1990

CR-9 JUDGEMENT

CR-10 NOTICE OF ENTRY OF JUDGEMENT

CR-11 NOTICE OF APPEAL

CR-12 DESIGNATION OF RECORD OF APPEAL

CR-13 PROOF OF SERVICE

CR-14 PLAINTIFF'S EXHIBIT # 1

CR-15 PLAINTIFF'S EXHIBIT # 2

A117

bad

Klis

\ PYMAMIDO

LAKE

ANAHO ISLAND

Spanish Springs

NIXON

Valicy *

F DE WADSWORTH

VISTA

Truckee Neadows FERNLEY

TRUCKEE

STAMPEDE VERO! —S

RESERVOIR CANAL

Independence La an

Weber Lake _—

voca =

NESENVOIR WASHOE

PROSSER LAKE TRUCKEE

RESERVOIR RIVER

ponnen

LAKE LORISTAN

MANTIS CHEEK

RESERVOIR

LAKE TAHOE

100,O000FEFET

TRUCKEE RIVER BASIN

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NOVEMBER 6, 1978

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY

REGION IX

215 Fremont Street

San Francisco, Ca. 94105

Bernard Gulla

Chairman

Washoe Council of Governments

2525 Terminal Way

Reno, NV 89502

Dear Mr. Gulla:

Congratulations on reaching a major

milestone in the planning process’ for

water quality in Washoe County. I am

pleased to inform you that the Environmen-

tal Protection Agency ~is approving

the Water Quality Management Plan prepared

by the Washoe Council of Governments

(W-COG), subject to the enclosed condi-

tions.

EPA recognizes and appreciates the support

given by local elected officials to the

208 planning process. The efforts of

those officials, the citizen and technical

advisory committees, and W-COG staff have

produced a plan which addresses the

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control of non-point sources of water

pollution in the Truckee River. Although

the plan does not include all the elements

of 208 planning, it does contain sound

technical and institutional decisions on

areawide water quality management.

Our conditions of approval are based on

the requirements of the Federal Water

Pollution Control Act Amendments of 1972,

Part 130 and 131 regulations, and the

W-COG work plan as amended in September,

1977. As the continuing process success-

fully meets the approval conditions, full

EPA approval will be forthcoming.

It is our pleasure to continue to work

together on water quality management

planning in Washoe County.

Sincerely,

Original signed by:

Sheila M. Prindiville

FOR

Paul De Falco, Jr.

Regional Administrator

A120

CONDITIONS OF EPA APPROVAL OF THE WASHOE

COUNCIL OF GOVERNMENT'S 208 WATER QUALITY

MANAGEMENT PLAN

l. sec. 131.11 (a.1)/ Sub-task 2.1. The

plan shall note that a large scale map

delineating the approved designated and

non-designated areawide planning areas has

been prepared and is available for public

review at the W-COG office. Time period

for submittal: December 15, 1978

Ze sec. 131.11(a)(2). The Plan shall

identify those areas in which facilities

planning has been deemed necessary, after

consultation with sewage management

agencies and the Division of Environmental

Protection. Time period for submittal:

December 15, 1978

3. sec. 131.11 (c)(1). The Plan shall

include an inventory and ranking of

municipal dischargers to be used by DEP in

the development in the State's project

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priority list. Time period for submittal:

December 15, 1978

4. sec. 131.11 (c)(3)/sub task 4.1. The

Plan must include population projection

for a 20 year planning period. Time period

for submittal: December 15, 1978

5. sec. 131.11 (¢c)(5)/sub task 4.1. The

Plan shall indicate when the projected

land use plan developed by the Regional

Planning Commission was adopted by the

appropriate governing bodies. Time period

for submittal: December 15, 1978

6. sec. 131.11(da)(j).

a. The Plan shall include an assessment of

water quality problems caused by categor-

ies of nonpoint sources of pollutants

other than agricultural return flows and

urban stormwater runoffs. Time period

submittal: To be agreed upon in workplans

of the continuing planning process.

b. Identification and evaluation of

control needs for additional nonpoint

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sources will also be included in the 208

plan. Time period for submittal: To be

agreed upon in workplans of the continuing

planning process.

7. sec.131.11l(e). Given the results of the

ongoing water quality study on the Lower

Truckee, and the JWPCP expansion/upgrading

facilities plan and EIS, the Plan shall

recommend revisions to water quality

standards downstream of Vista. Time period

for submittal: To be agreed upon in

workplans of the continuing planning

process.

8. sec.131.11(f£,9,h.i1,k,m). The plan shall

include total maximum daily loads, point

source load allocations, municipal waste

treatment needs, residual waste control

needs, and target abatement needs. These

elements, which were excluded from the

initial planning effort by mutual agree-

ment by W-COG, DEP,EPA, must be addressed

in the future continuing planning process.

A123

ta ieteataeele

Time period for submittal: To be agreed

upon in workplans in the continuing

planning process.

9. sec.131.11(n)(2)/sub task 5.4. The Plan

shall include those mechanisms necessary

for implementing selected nonpoint source

controls, including drafts of ordinances

for local street sweeping, anti-litter,

parking, and drainage control. In addi-

tion, the Plan shall contain a financial

plan and time schedule for adopting and

implementing these ordinances. Time period

for submittal: December 15, 1978

10. sec.131(0)/sub-task 5.3

a. The Plan shall document that the three

political entities accept the various

pollution management responsibilities the

have been assigned. Time period for

submittal: December 15,1978

b. The Plan shall reference the decision

to create a Department of Regional

Planning of Washoe County and shall

A124

schedule a date for the Department to

become operational. Time period for

submittal: December 15, 1978

ll. With regard to the status of the Plan

relative to the requirements of 40 CFR

131.11, EPA makes this finding:

a. Requirements which have been met, or

conditionally met: a; c(2), (4); e; 1; n;

O; Pp.

b. Requirements which have been addressed,

but may require more detailed considera-

tion, or may necessitate future changes as

a result of changing and the need to

further consider environmental impacts:

c. Requirements which have not been met f;

Gs he 23 Ee @.

12. Task 1, Goals Definition: Integration

of air and water quality planning to

maximum extent possible is stated asa

priority need inthe W-COG work plan. In

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fulfiliment of this need, future 208

planning shall reflect coordination of

Gemographic and land use data as well as

integration of water pollution control

measures and strategies with those of the

Truckee Meadows Air Quality Implementation

Plan.

A126

MR. BATOR: It says, Clause 4: "Agricultur-

al activity conducted on farmland consis-

tent with good agricultural practice and

established before surrounding nonagr:icul-

tural activities is not a public nuisance

unless it has a substantial adverse effect

on the public health or safety. It is

presumed that an agricultural activity

which does not violate a federal, state

or local law, ordinance, or regulation

constitutes good agricultural practice."

In the letter that---

THE COURT: Now, what's the argument that

that section you just quoted precludes the

Washoe County Health Division from making

this review under Section 303 of the

building code? Is it your argument that

under that statute, only the Department of

Agriculture may conduct such a review?

MR. BATOR: I'm no different that any other

agricultural applier of any place in the

United States, your Honor. I am no

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different than anybody else. As indicated

to me that they intended to stop me from

doing this. In the letter dated October

25th, it says “under federal, state, and

local regulations." The don't exist,

your Honor. I've asked repeatedly since

April of last year for those regulations,

but they don't exist.

THE COURT: Let's go back to 202.450,

Subsection 4. Doesn't NRS 202.450 define

the crime of public nuisance? isn't

A128

MR. BATOR: There's no basis in the iaw for

them. They are making arbitrary decisions

to make me spend money that are absolutely

unfounded.

THE COURT: Do you have any authority other

than 202.450 that the Health district may

not conduct the review?

MR BATOR: Well, the whole thing amounts

down to the environmental protection laws

and under a letter that was introduced,

the process which the Health Department

which is supposed to go through to gain

control was never gone through and I'm

prepared to cite those citations if you

like.

THE COURT: All right. Is this about

discharge?

MR. BATOR: This is about discharge, your

Honor. You see, the issue that's involved

is that the County contends I am infring-

ing upon the public right to clean water.

THE COURT: No. The county contends--at

A129

least by virtue of the record of this

case--that there must be an opportunity

for the responsible health authorities,

which are the Health District and, for

certain purposes, the State Division of

Environmental Protection to conduct a

review of this project for health

purposes. That's what the basis is. There

is nothing in this record, in the court

filings or in the record of the other

action to be a threat to think the Health

Authority or the Building Department is

saying to you, "This is a bad project" or

"This is a project that won't be approved".

it's an appropriate example would be to

have a rendering plant, something that

involved animals wants to move to town and

wants to build a facility. There's no

reason to think that they are going to

commit any crime or conduct an activity

that constitutes a public nuisance.

Don't you think that under. the

Building Code and the statutes we discus-

sed, the Health District is not only

empowered and authorized, but is acting

very reasonably in the interest of

public health if the conduct a review of

that project? 7

MR. BATOR: Your Honor, if I bought a piece

of property andI had cows defecating on

the ground and spread it around on the

pasture, it would be no different. They

are attempting to use laws--

THE COURT: I'm not talking about those

laws, I'm talking about the statutes. What

about the authority under this statute in

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the Building Code that was adopted under

the County Code? I'm talking about a

review.

You challenged in this proceeding

the authority of the health District to

conduct a review. Your position from your

pleadings is that you are entitled now to

building permit, this Court should use its

extraordinary powers to enforce this writ

to issue you a permit; isn't that your

contention?

that was proposing this operation, but

it's only one side of the coin. I don't

know what the Health District might have

to say about it and the whole position of

the County here today is: Give the Health

District an opportunity to make _ the

review, render their decision and based

thereon, the Building Department will

render its decision and then either a

court or the Board of Adjustment can have

that record to conduct further proceed-

ings.

MR. BATOR: Your Honor--

THE COURT: I can't sit here and essential-

ly short circuit the entire review process

and find as a matter of law that what you

told me about described here constitutes a

point source or non-point source. That's

what we have these entities who have

expertise to make these sort of judge-

ments.

MR BATOR: Yes, your donor. That was

A133

covered in the Board Of Adjustment hearing

back in May. Ron Young, who is the

Administrator Processor of that hearing

agreed with me, I didn't need a srecial

use permit. But the turned it over to the

County Counsel and they turned around an

said I did.

THE COURT: And you only needed a special

use permit?

MR BATOR: The counsel contended in the

special use permit I needed a discharge

permit from the State

the jurisdiction of the State Division of

Environmental Protection were referred to

that division, also, for review.

It is not clear to me whether the

project envisioned by the building permit

application constitutes a point source or

a diffuse source: but, because that is so,

I am certainly unable to find that

petitioner has, by clear evidence,

demonstrated that neither the State

Division of Environmental Protection or

the Washoe County Health District do not

have jurisdiction to conduct this review.

Therefore, I am unwilling to issue

the Writ to preclude the review from going

forward. I find that the Washoe County

District Health Department does have

jurisdiction under NRS 439.410 to conduct

a review consistent with their jurisdic-

tion obligation and authority as to public

health matters in this county.

The court does not agree with the

A135

petitioner's analysis that just because a

project proposed in a building permit

application may not constitute a public

nuisance as defined in NRS 202.450, it

therefore follows that the Health District

and/or the State Division of Environmental

Protection is without jurisdiction to

conduct a review. Therefore, the petition

is hereby denied.

Mr. Nash, would you prepare a

written order consistent with this Court's

order today?

A136

days or more per year.

Then it has some exceptions which

includes enclosed ponds which discharge

only during periods of excess runoffs or,

B, facilities that produce less that

20,000 pounds of aquatic animals per year.

I don't think this production facility

fits within the exceptions of that

definition. Apparently it is the position

of the State Division of Environmental

Protection it does not either.

THE COURT: Is there any further

authority that eliminates the definition

of the term "aquatic animals"?

MR. NASH: That's the only thing I

have found in the Nevada Administrative

codes.

(Court Opinion previously transcribed.)

MR. BATOR: Your honor, I didn't get

tc finish presenting my case. I can show

clearly in the statute that I don't need a

discharge permit. %

A137

THE COURT: Well, you have discussed

the statutes at length Mr. Bator. I have

reviewed the authorities and this hearing

is concluded. Thank you.

(Proceedings concluded)

A138

DEPARTMENT OF CONSERVATION AND NATURAL

RESOURCES

DIVISION OF ENVIRONMENTAL PROTECTION

201 South fall Street

Carson City, Nevada 89710

December 19, 1989

Tony Bator

1605 Ambassador Dr.

Reno, NV 89502

Dear Mr. Bator

In response to your inquiry, the

federal Environmental Protection Agency

has delegated administration of the

National Pollution Discharge Elimination

System permits program to the Nevada

Division of Environmental Protection. This

responsibility has not been re-delegated

to any other state of local agency.

I hope that this information

adequately responds to your question.

Sincerely,

Richard E. Reavis

Chief, Permits and Compliance

RER/srb:1

A139

JUDGEMENT DEPARTMENT 6 CV89-7653

DATED FEBRUARY 7, 1990

IN THE SECOND JUDICIAL DISTRICT COURT OF

THE STATE OF NEVADA IN AND FOR THE COUNTY

OF WASHOE

ANTHONY J. BATOR JUR.,

Petitioner, JUDGEMENT

vs.

WASHOE COUNTY BUILDING DEPT.,

Respondent,

WASHOE COUNTY

Real Party in Interest

This matter having come on regular-

ly for hearing on January 25, 1990,

Petitioner, Anthony Js Bator, JE es

appearing in proper person and Russell S.

Nash, Jr., Deputy Washoe County District

Attorney, appearing as counsel for the

Respondents, and the Court having reviewed

the Petitioner's Points and Authorities in

support of his Application for Writ of

Mandamus and the Respondents' Points and

A140

Authorities in opposition thereto, and

having heard the oral arguments of

Petitioner and Counsel and being fully

‘advised in the premises, the Court finds

the following facts and states the

following conclusions of law:

The purpose of the mandamus

provisions of our law is to provide an

extraordinary remedy under circumstances

in which it is clear that the remedy is

warranted. The writ of mandamus should be

resorted to only when the usual and

ordinary remedies fail to afford adequate

relief and where, otherwise, there would

be a failure of justice. Mandamus will not

apply unless a clear legal right to the

remedy is shown.

The burden of establishing a right

to the remedy is imposed by law upon the

Petitioner. The availability of an

alternate remedy or the failure to

demonstrate the clear right to the

A141

mandamus compels denial of the writ.

The Uniform Building Code of 1985,

as adopted by reference through the Washoe

County Code, Section 100.010, plainly

authorizes the Building Department and the

appropriate "building official” in that

department to have plans pursuant toa

building permit application reviewed by

other departments, as appropriate,

to determine if they conform with the

requirements not only of the Washoe County

Code and the Uniform Building Code, but

other pertinent laws and ordinances. In

this case, the Washoe County Health

District was requested by the Building

Department to review Petitioner's plans.

In addition, certain matters under

the jurisdiction of the State Division of

Environmental Protection were referred to

that division for review.

Petitioner has not demonstrated, by-

clear and convincing evidence, that the

Ai42

State Division of Environmental Protection

and the Washoe County Health District are

without jurisdiction to conduct this

review.

The Washoe County District Health

Department has jurisdiction under NRS

439.410 to conduct a review consistent

with its obligation and authority as to

public health matters in this county.

The Court does not agree with the

Petitioner's analysis that because a

project proposed in a building permit

application may not constitute a public

nuisance as defined in NRS 202.450,

it therefore follows that the Health

District and the State Division of

Environmental Protection are without

jurisdiction to conduct a review.

THEREFORE, IT IS HEREBY ORDERED AND

ADJUDGED:

he That the Peremptory Writ of

Mandamus applied for is herein denied;

A143

2. That the Alternative Writ of

Mandamus granted herein is discharged.

DATED this 7th day of February,

1990.

District Judge

A144

ORDER DISMISSING APPEAL

Dated: October 29,1990

IN THE SUPREME COURT OF THE STATE OF

NEVADA

ANTHONY J. BATOR NO. 20862

Appellant,

vs.

WASHOE COUNTY BUILDING DEPARTMENT

AND WASHOE COUNTY

Respondent.

ORDER DISMISSING APPEAL

This is a proper person appeal from

an order of the district court denying

appellant's petition for a writ of

mandamus.

Appellant contends that the

district court erred in denying his

petition. This contention is without

merit. The district court correctly found

that appellant did not carry his burden of

proving that the Building Department had a

present duty to issue him a permit

notwithstanding the objections of the

District Health Department. Further, in

A145

light of the remedy available to appellant

in the ordinary course of the law if the

Building Department erroneously denies him

a building permit, see NRS 278.310, the

extraordinary remedy of mandamus is not

available to appellant. See NRS 34.170.

Thus, the district court did not err in

deny in denying appellant's petition

below.

Having reviewed the record on

appeal, and for the reasons’ set forth

above, we conclude that appellant cannot

demonstrate error in this appeal, and that

briefing and oral argument are unwar-

ranted. See Luckett v. Warden, 91 Nev.

681, 682, 541 P.2d 910, 911 (1975), cert.

denied 423 U.S. 1077 (1976). Accordingly,

ORDER this appeal dismissed. (1)

Young

A146

Springer

» Be

Mowbray

» We

Rose

cc. Hon. Brent T. Adams, District Judge

Hon. Mills Lane, District Attorney

Anthony J. Bator

Judy Bailey, Clerk

(1) In light of our disposition of this

case we deny as moot appellant's motion to

proceed without an attorney.

MOTION TO RECONSIDER THE ORDER DISMISSING

APPEAL

DATED: November 6, 1990.

IN THE SUPREME COURT OF THE STATE OF

NEVADA

ANTHONY J. BATOR,

Appellant,

vs.

WASHOE COUNTY BUILDING DEPARTMENT

AND WASHOE COUNTY

Respondent.

MOTION TO RECONSIDER THE ORDER DISMISSING

APPEAL

COMES NOW Anthony J. Bator and

requests the court to examine the proceed-

ings in the above case as it is obvious

this has not been done.

This court cites NRS 34.170 and NRS

278.310 as a basis for denial of suit. Mr.

Bator has been before the board of

adjustment with this issue, specifically

the issue of a discharge permit. The board

held with the district health department,

A148

that a discharge permit was required. We

are at a stand-off and require

this to be adjudicated. IF the court finds

that Mr. Nash's comment's prevail, that

this subject was not part of the agenda

before the board of adjustment I will

promptly go to the criminal division of

the district Attorney's office and swear

out a complaint for perjury. In my claims

at the trail I stated and restated that it

was the position of the board that I need

a discharge permit. This position has not

changed even after having visited and

discussed the subject with my county

commissioner.

This is the issue of the suit. With

the law that was introduced before Judge

Adams Mr. Bator proves he is not required

to obtain a discharge permit. Having made

his decision from the bench without even

having read the laws introduced by

petitioner, Bator, his decision is

A149

unwarranted.

In reviewing the action. Judge

Adams ordered the Washoe County Building

Department to show cause as to why Mr.

Bator's Building Permits were being

denied. In court Rusty Nash, cttorney

for the Washoe County Building Department

made two allegations. First, that Peti-

tioner to the court had not exhausted his

administrative remedies by appearing

before the Washoe County Board of Adjust-

ment. This had been done. It was the

position of the board that Bator was

required to obtain a discharge permit.

This is the second allegation made by the

Washoe County Building Department in court

and the issue of our dispute. This was not

made clear inthe courtroom before Judge

Adams because of his misconduct. The

county contends that Bator is required to

have a United States NATIONAL POLLUTION

DISCHARGE ELIMINATION SYSTEM PERMIT. Other

A150

ee ee ae

a is

- a

than this issue Bator is in compliance

with all requirements as stated at the

trail by Oris Corbridge head of the Washoe

County Building Department. The Washoe

County Health Department claims to have

jurisdiction to administer this system

of discharge permits. The law says

otherwise. Introduced in evidence was a

letter from the state director of the

system that clearly states they do not.

The law says that you must apply for

this authority and participate in an

education system to administer this body

of law. The washoe county health depart-

ment has not done this. If they had they

would have read the law, been aware that

the Appellant is located outside of a

section 208 area under the water pollution

control act of 1972 and later amended in

1977 and entitled the Clean Water Act of

1977. They would also be aware of the

intent of the law and adjudicated history

A151

of the law regarding the fact that it

applies to surface waters or injections of

pollutants through wells. Neither of

which Bator will ever do. They would also

be aware that the Clean Water Act spec-

ifically states that no agricultural user

of the land can be compelled to acquire a

discharge permit. Bator has a court order

declaring him to be an agricultural user

of the land. All of these laws were

introduced at the hearing before Brent

Adams but because of his arrogance and

failure to conduct himself in an honorable

manner (i.e. impartial) I was not permit-

ted to sum up my argument in a concise

clear manner and present my issue clearly.

The tone of the hearing was set by

Judge Adams and issues not introduced by

either party to the action were argued as

a result of introduction by Judge Adams.

My Brief before this court does sum up my

argument with the laws introduced at the

A152

Se ae a a a. ee ee

hearing. You dismiss my appeal without

briefing or oral argument which clearly

indicates you have not reviewed the law or

my issues. I am correct. In order to

appeal my case to the U.S. Supreme Court I

must give you the opportunity to recon-

sider your dismissal. This is it.

DATED 11-6-90

Anthony J. Bator

Pro se

A153

ORDER

Filed: December 18, 1990

IN THE SUPREME COURT OF THE STATE OF

NEVADA

ANTHONY J. BATOR, No. 20862

Appellant,

vs.

WASHOE COUNTY BUILDING DEPARTMENT

AND WASHOE COUNTY,

Respondent.

ORDER

This is a proper person appeal from

an order of the district court denying

appellant's petition for a writ of

mandamus. On October 29, 1990, this court

dismissed this appeal. On November

6,1990, appellant submitted for filing a

motion to reconsideration. Although we

have not granted appellant leave to

proceed in this matter in proper person,

we have considered appellant's motion.

Cause appearing, we deny the motion.

A154

It is so ORDERED.

Young

Steffen

Springer

Mowbray

Rose

A155

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.