# Petition for Writ of Certiorari — Bator v. Washoe County Building Department > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1584%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 499 U.S. 922 ## Text 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 1 ~ a — 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 3 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 4 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 5 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 6 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. 7 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 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 ge nthony #7./Bator Pro se i 4 7 ‘a P % i — 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 \. 2 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 1 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 2 . hd is oa 7 Lar e sty Sc - ae ale Seed aoe eo a ‘ > cA i 3 : - . —- a p= a a , ; re a _ 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. zt DATED this /5" aay of January, 1991 iw Pome Rare hearers) ay “ee ’ ‘ ed 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 ae : ROBIN ELLEDGE _}) 296) Notary Public - State of Nevada ; } Appointment Recorded in Washoe County MY APPOINTMENT EXPIRES JAN 16, 1993 i ria eer Ce 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 1 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 2 ee 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 3 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 = ic Notary Appointment Pecorde My APPOINTMENT EXPIRES MAY 1 Ee 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 a 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 2 S3 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 ‘ 5 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 A4 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 A5 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 A6 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 A7 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 A8 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 Ag 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: 1. 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 Al7 nS ea ke eee i i a ry =n..7 ye ae en 7 ae er . aaa ’ ~ Nie = >=, io —_— a = aa = wr —e eas == _ on a = _—_- 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; (c) Provide for the sanitary 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. IV 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 By 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 a iw | rie Dey — a ee Bre ea c re Gl alg rw nn & ea « Saws £ on oa ho 7 a Ra ; ' Tn ra Ge he ier t |? 0 oa -. ai. cs d ae eae Fee del ba ene = \ ee ae 4, 2 a 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 ee . = 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 = ul U ~ i 7 u ~ te { l 7 A! . i ) > — : ‘ ‘ t 7: -_ e . - 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 - « . ‘ 4 : [ Hi ‘ ‘ -~ -~ § a i C : i i | . ‘ f ; — 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 a a ~.- Tae ‘ = ete oa ot i so ate ego) Meld wr - : am - — nie 7 * ; ae . . _t % so a Oo — “to —_— J 3 Ss eee 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 PRPS Pew ene F , ' ' a so dl td RES Sine i piniialss BA oi, : 70,7 ee 4 = oe, . 4! —_ ne Pa 5 oe a 7 sl a a a ; ren - cad ; x fos z= a 7 a - - i : . 7 i @ - = N | a i f = fr ae | ; . | . - - H { : oy ¥ ass — a 1 —_ = -— - - a> OK Donk, 5 cpa aeeeebest — a ee ours ‘ cies a - 5 wo ‘aa at : ae 7 — on me “| : oe = cham ae oh Tes . a oe ae ; 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 = a - nae 1 te te Dena Jat, ae se a seal a nn ait - +. ney te i cS eat 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 7 pied he a a ate i er ao 7 a ah - ae] ~ | — Ie aol Pee eich, — ste 7 7 7 = = i . a 5 ‘ a) : “: the am — pa 7 = Gee ia ies ‘tax mE : a tpl, ne we ; | = ee ee = , ae cae wD a. itd ay a 8) is oa 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 i TABLE OF CONTENTS Subject Page Table of Contents i Table of Authorities ii Statement of the Issues 1 N Statement of the Case Argument 1 5 Argument 2 16 Conclusion and Relief Sought 20 A75 ii 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 : : a 4 a or = = ———— ne a = aS Li , ’ ™ — ee ee a ies = = 4 2 — 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 7 : : . Al oo 7 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 => ‘ Whee: Py = ce - > a Se —yow - = u + = _ ; ; | ; 7 ——— — ; . ee ee a 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 yy 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 td 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 All13 10 11 12 iJ H Ue wii a! ‘ “is bosib i ay ae a a j > a, ult 2 i. TPS ne ad . i : - as ‘ere 4 ae fi eer). teas all - - oe s ¥. fad > ‘ } J 7 : i. Ci os) a a Co 7 _ 7 Pe 2 es. — oe e $ coy, Bi aoe, de om - a Ba a a ak Th *h LL . "a ar 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 to to to to 55 92 83 76 89 ; a L , i) \- t ] : (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 AG TRUCKEE STAMPEDE VERO! —S RESERVOIR CANAL M 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 Source [7 J Figure IlI-4 I11I-20 Ailg 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 A119 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 44 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 Al21 << 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 Al22 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: b(2), (2)3 © C2), (3)e Ube Ge 3; 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 A125 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 Al27 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 Al31 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, we 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 i 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1584%3A1. Public record. Not legal advice.